The central ruling in this case holds that private actions to vindicate rights asserted under the Federal Trade Commission Act may not be maintained.

Claiming to represent the interests of the consuming public and advertising audience,1 the appellants brought this class action against Bristol-Myers Corporation, the manufacturer of Excedrin, a widely sold non-prescription analgesic compound. They allege in essence that Bristol-Myers' representations in a variety of advertisements-that Excedrin is and has been shown to be a more effective pain relieving agent than common aspirin-are false, deceptive and materially misleading; and that, in reliance upon them, persons have been and will be induced to purchase Excedrin in preference to other, equally effective and less expensive analgesics, to their pecuniary loss.

The complaint was grounded on three basic theories: a statutory action based on sections 5, 12 and 14 of the Federal Trade Commission Act (hereafter "Act"), as amended, 15 U.S.C. Secs. 45, 52 and 54; a common law action for deceit; and an equitable claim that appellee's advertisements constitute a public nuisance. Appellants sought declaratory and injunctive relief, together with damages, both compensatory and punitive.

The District Court dismissed appellants' statutory and equitable claims for failure to state a claim upon which relief could be granted2 and their common law claims for want of jurisdictional amount. We affirm.

A. Broad Overview of the Issue of Private Actions to Enforce the Federal Trade Commission Act

The central question is whether consumers and members of the public at large may bring a private action to enforce Secs. 5, 12 and 14 of the Act, as amended, which prohibit "unfair or deceptive acts or practices in commerce" (Sec. 5(a)),3 including "any false advertisement . . . which is likely to induce, directly or indirectly the purchase of . . . drugs" (Sec. 12(a)(1)),4 violations of which are misdemeanors if made "with intent to defraud or mislead" (Sec. 14(a)).5 The issue has been much discussed by scholars.6 We join in the analysis of the well-reasoned opinion of Judge Jones, that an action of this nature may not be maintained Holloway v. Bristol-Myers Corp., 327 F. Supp. 17 (D.D.C., 1971). We add our opinion primarily to enlarge on the well-nigh dispositive history and structure of the legislation, and in part to amplify and redefine the core analysis.

The Act nowhere purports to confer upon private individuals, either consumers or business competitors, a right of action to enjoin the practices prohibited by the Act or to obtain damages following the commission of such acts. On careful examination of the Act and its legislative history, both when passed in 1914 and amended in 1938, we find strong indication that Congress did not contemplate or intend such a private right of action.

Appellants contend that the courts should, by implication of law, recognize and entertain such an action as a necessary adjunct to the enforcement of the statute's prohibitions.

Appellants point to numerous instances in which civil remedies have been implied as judicially-fashioned corollaries to various Federal regulatory statutes.7 The opinion of Judge Jones analyzes a number of these precedents, including particularly the leading case of J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964). In broad outline, the rationale for implying a private right of action rests upon: (1) a Federal statutory or constitutional prohibition against the acts complained of; (2) inclusion of the defendant in the class upon which the duty of statutory compliance has been imposed; (3) legislative intent to place the party claiming injury within the ambit of the statute's protection or to confer a substantive benefit or immunity upon him; (4) injury or threatened harm proximately resulting from the defendant's breach of duty; and (5) unavailability or ineffectiveness of alternative avenues of redress.

These factors are necessary but not sufficient conditions, and their combined presence does not automatically warrant the implication of a private right of action. The core of our decision rejecting implication of a private action lies in our analysis of the ramifications of the asserted private remedy and a comparison of these with the policies and objectives sought to be advanced by Congress.8 This analysis is conjoined with a further discussion of factors (3) and (5), legislative intent and ineffectiveness of the means provided by Congress for effectuating its objective.

Judicial implication of ancillary Federal remedies is a matter to be treated with care, lest a carefully erected legislative scheme-often the result of a delicate balance of Federal and state, public and private interests-be skewed by the courts, albeit inadvertently. This caution is especially apposite in situations where, as here, the substantive prohibitions of the statute are inextricably intertwined with provisions defining the powers and duties of a specialized administrative body charged with its enforcement9 and where Congress has superimposed a structure of Federal law upon the existing system of common law remedies for fraud and deceit without preempting or superseding the latter.B. The 1914 Statute

The Federal Trade Commission was created in 1914 as part of a two-pronged effort by Congress to improve enforcement of the anti-trust laws.10 One branch of this program consisted of specifically prohibiting certain types of conduct-i. e.: price discrimination, price fixing, exclusive dealing, anti-competitive mergers and acquisitions, and interlocking directorates-that tended to encourage the formation of monopolies. These detailed prohibitions were set forth in the Clayton Act, 15 U.S.C. Secs. 12-27, which became law on October 15, 1914. In this area, Congress provided a maximum of enforcement authority: criminal penalties, see 15 U.S.C. Sec. 24; actions brought by the Justice Department to enjoin violations, see 15 U.S.C. Sec. 25; authorization to the FTC and certain other agencies to issue cease and desist orders to restrain violations by enterprises subject to their respective jurisdictions, see 15 U.S.C. Sec. 21. In addition, the Clayton Act expressly authorized private actions, both for treble damages and equitable relief, by any "person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws," 15 U. S.C. Secs. 15, 26, and provided that judgments obtained by the United States against the same defendant shall be prima facie evidence of a statutory violation in any subsequent private litigation, see 15 U.S.C. Sec. 16.

Congress recognized, however, that any attempt at an exhaustive catalogue of anti-competitive practices would only tempt those bent upon thwarting or circumventing the anti-trust laws to adopt new and different artifices to achieve the same ends.11 The legislature felt, moreover, that there was need for action of an early, preventive nature, to strike down devices and schemes in their incipiency, before they became entrenched in structure and industrial concentration.12 These factors suggested a statute whose prohibitions were couched in broad, generic terms, permitting application in a wide variety of commercial contexts and coping with evasive tactics. Yet this breadth of prohibition carried with it a danger that the statute might become a source of vexatious litigation. Expertise was called for,13 both to identify trade practices that posed the threat of monopoly and to avoid using the statute as a vehicle for trivial or frivolous claims. There was, furthermore, a need to develop a central and coherent body of precedent, construing and applying the statute in a wide range of factual contexts, so as to define its operative reach.14 Finally, it would be of assistance to create a specialized forum where businessmen whose methods had been called into question could voluntarily revise their practices without the need to resort to the courts.15 It was in response to these needs that, on September 26, 1914, Congress passed the Federal Trade Commission Act and established the Federal Trade Commission.

As enacted in 1914,16 section 5(a) of this Act provided:

Unfair methods of competition in commerce are hereby declared unlawful.The [Federal Trade] Commission is hereby empowered and directed to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce.

These two paragraphs follow immediately upon one another, both in the same enumerated subsection. The Act continued, Sec. 5(b):

Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair methods of competition in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be in the interest of the public, it shall serve upon such person, partnership, or corporation a complaint . . . . (emphasis supplied)

The statute went on to detail a procedure whereby the FTC, following notice and hearing, might enter an order directing the respondent to cease and desist from the practice complained of and was empowered to seek enforcement of its order in an appropriate Court of Appeals.

Although the Federal Trade Commission Act and the Clayton Act were coordinate statutes, both furthering the same general objective of avoiding monopoly and concentrations, different means of implementation were selected by Congress, each uniquely geared to the substantive prohibitions of the respective acts.17 The focus of the Trade Commission Act was a highly specialized administrative body to which Congress delegated a wide range of visitorial powers in the field of potentially anti-competitive trade practices. Whereas the Clayton Act, with its relatively specific prohibitions, was accompanied by a broad range of enforcement devices, including private actions, the Federal Trade Commission Act, with its broadly framed proscription, was intended to be the exclusive domain of the specialized agency expressly charged with its enforcement and created for that purpose. The Commission was entrusted with a broad responsibility and discretion, prosecutorial in part, judicial in part (to enter orders of restraint), linked and subject to a determination that cease and desist proceedings and orders would further the public interest.18 As the Supreme Court declared: "Section 5 . . . does not provide private persons with an administrative remedy for private wrongs."19 Private persons were given no right to file a complaint, and the only participation by private interests that was contemplated was that of intervention, on leave and a showing of good cause, as set forth in Sec. 5(b):

Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the Commission, to intervene and appear in [a cease and desist] proceeding by counsel or in person.

Finally, in 1926 the Court gave short shrift to the effort of a private party to append a claim of "unfair methods of competition" under Sec. 5 to an anti-trust complaint, and held that such relief "must be afforded in the first instance by the [C]ommission." Moore v. New York Cotton Exchange.20

We now consider whether the 1914 preclusion of private actions was altered by subsequent amendments to the Act.

In the course of enforcing the 1914 Act, the FTC became aware that deceptive advertising posed a substantial threat to free competition, by diverting trade to those who used such methods in the hope of securing a trade monopoly. The Commission began several proceedings and issued cease and desist orders, upheld in a series of notable decisions, that false labeling and dishonest merchandising and advertising techniques constituted "unfair methods of competition in commerce" within the meaning of Sec. 5.21

However, an impediment to FTC jurisdiction and enforcement arose in the form of a judicial decision interpreting "methods of competition" to require that the FTC demonstrate the fact of injury to a competitor as a condition to section 5 proceedings. FTC v. Raladam Co., 283 U.S. 643, 51 S. Ct. 587, 75 L. Ed. 1324 (1931). Not only did this complicate problems of proof and increase the cost of proceedings, but it reportedly served to stifle enforcement of the Act in industries where competition was virtually non-existent or where all members of the trade used equally reprehensible selling tactics.22 Accordingly, the Commission sought amendatory legislation making clear the FTC's authority to pursue deceptive acts without the need to show adverse competitive impact. These recommendations were embodied in bills introduced in the 74th and 75th Congresses to add to section 5 an express and unqualified prohibition against "unfair or deceptive acts or practices in commerce."23

During the same period of the 1930s, Congress was engaged in a comprehensive revision of the Food and Drug laws.24 In addition to seeking stricter control over the sale of adulterated and misbranded products intended for human consumption, sponsors of this reform legislation, led by Senator Royall S. Copeland of New York, sought to bring all advertising of food, drugs and cosmetics within the purview of the Food and Drug Administration. Legislation was proposed making the dissemination of false advertising a misdemeanor and declaring it a public nuisance, subject to restraint by District Court injunction.25 These potent measures were opposed by Members of Congress, particularly in the House, and by representatives of the affected industries, who considered a standard or per se liability inappropriate for advertising claims as to which medical opinion might be divided, who favored retention of FTC jurisdiction in all fields of promotional activity, and who were mistrustful of any attempt to vest in the Food and Drug Administration and the Secretary of Agriculture broad, plenary authority to control the dissemination of advertising matter.26 There resulted a Congressional impasse that threatened to block the passage of any reform of the Food and Drug laws.27

The deadlock was broken in the 75th Congress. In March 1937, the Senate passed first S. 5, to amend the Food and Drug Act so to provide FDA jurisdiction over food, drug, and cosmetic advertising,28 and later S. 1077, to provide the amendments to the Federal Trade Commission Act that the FTC had sought.29 Both bills were referred to the House Committee on Interstate and Foreign Commerce. As in prior Congresses,30 the House was unwilling to accede to the advertising controls embodied in the Senate food and drug bill. Instead of merely striking the offending provisions from S. 5, the House Committee took the further step of revising these paragraphs and engrafting them onto the Trade Commission Act amendments, thus placing in the hands of the FTC exclusive control over food, drug, and cosmetic advertising.31 This legislative amalgam, denominated the Wheeler-Lea Amendments to the Federal Trade Commission Act, passed the House in January 1938, was adopted by the Conference Committee,32 passed the Senate, and was signed into law by President Roosevelt on March 21, 1938.33 Thereafter, shorn of the one-time impediment of the controversial advertising provisions, the Food, Drug, and Cosmetic Act became law on June 25, 1938.34

The resulting amendments to the Federal Trade Commission Act contain six provisions relating to advertising.35 The first of these embodied the general modification of Sec. 5 which the FTC had sponsored in its effort to overrule the Raladam case.36 The remaining five provisions, dealing expressly with food, drug and cosmetic advertising, were transplanted from the Senate's Food and Drug bill. Section 1237 made unlawful the dissemination of false advertising for any food, drug, or cosmetic, and declared it an "unfair or deceptive act or practice" within the meaning of Sec. 5. Supplemental means to enforce Sec. 12 were provided. Section 13 gave the FTC authority to seek temporary injunctions to restrain violations of Sec. 12 while cease and desist proceedings were pending.38 Under Sec. 14 violations of Sec. 12 that were willful or committed in connection with the sale of injurious products were made punishable as misdemeanors.39 Under Sec. 5(l) the United States was authorized to recover a civil penalty from any defendant who violated a final FTC cease and desist order.40 But under Sec. 16, these punitive measures were conditioned upon FTC certification to the Attorney General of probable liability.41 Finally, a definitional section, Sec. 15, paralleled the definitions in the Food, Drug and Cosmetic Act.42

The reasons why Congress chose the FTC Act, rather than the Food, Drug, and Cosmetic Act, as the vehicle for regulating the advertising of medicinal products are amply documented in the committee reports.43 The various alternative forms of regulation were the subject of extensive-and sometimes acrimonious-floor debate.44

The Wheeler-Lea Amendments represented a shift in emphasis, from the control of deceptive advertising practices as an incident of antitrust regulation to the avowed purpose of protecting the consumer from fraud.45 But in moving to achieve this goal Congress deliberately chose to entrust the regulation of advertising to an existing body, the Federal Trade Commission, whose methods and procedures were familiar and well established. Although the Wheeler-Lea Amendments extended the Commission's authority and added sanctions to its arsenal, Congress plainly intended these augmented powers to be exercised within the institutional matrix created by the 1914 Act.46 Indicative of this fundamental policy judgment are frequent references in the legislative history to the Trade Commission's expertise in dealing with commercial practices, its ability to act as a buffer in securing voluntary compliance through informal proceedings, and its sound discretion in determining when formal enforcement measures were necessary.47 Congress voiced approval of the Commission's record in shaping the fluid contours of generalized statutory policy pronouncements into meaningful and coherent rules of business conduct, and it felt that the agency's experience in making concrete the proscriptions of the 1914 Act against "unfair methods of competition" rendered the FTC particularly well suited to the responsibility of giving life to the broad standard of "deceptiveness" as applied to advertising.48 Until such an administrative refinement of definition could take place, Congress pointedly rejected any effort to hold business accountable to judicially imposed liability.49

* * *The 1938 action by Congress in amending the Federal Trade Commission Act was in a context where that Act had been interpreted by the Supreme Court in Moore v. New York Cotton Exchange to hold that actions under Sec. 5 must be brought by the FTC and not by private parties. A thorough ventilation of consumer interests and needs accompanied the 1938 amendments. Congress turned its attention to section 5 in two important respects, to overrule the Raladam precedent, and to incorporate the new food, drug and cosmetic provisions into the "unfair or deceptive acts or practices" prohibition; but Congress made no move to alter the Moore interpretation that precluded private enforcement of Sec. 5.

The conclusion is inescapable that Congress intended enforcement of the Wheeler-Lea Amendments to rest wholly and exclusively with the Federal Trade Commission, following the pattern laid down in the 1914 Act.

D. Judicial Latitude for Implication of Private Remedies

Appellants contend that the courts should look not to the form of the statute but to the social objectives sought to be furthered by it, and they argue that only through private rights of action can meaningful consumer protection against fraud and deceptive advertising be achieved. Similar contentions have been relied upon in other cases.50 But in the case at bar this court's latitude for judicial constructs is limited. We are considering an Act in which ends and means, the social ends to be fostered and the administrative means of achieving those objectives, are inseparably interwoven into a unified and comprehensive statutory fabric. Both are the product of a legislative balance which took into account not only consumer protection but also interests of the businesses affected, with particular concern for tempered enforcement, the orderly development of commercial standards, and freedom from multiplicious litigation.

1. Problems of compatibility of public and private

enforcement

We now consider various problems that might be presented to the public enforcement of the Act if private actions were given a full head of steam.

a. The Act gives the Commission a broad range of flexible enforcement powers available for use, as deemed necessary in the FTC's sound discretion and expert judgment.51 Inherent in the exercise of this discretion is the interplay of numerous factors: the relative seriousness of the departure from accepted trade practices, its probable effect on the public welfare, the disruption to settled commercial relationships that enforcement proceedings would entail, whether action is to be taken against a single party or on an industry-wide basis, the form such action should take, the most appropriate remedy, the precedential value of the rule of law sought to be established, and a host of other considerations.52 Above all, there is need to weigh each action against the Commission's broad range policy goals and to determine its place in the overall enforcement program of the FTC.

Private litigants are not subject to the same constraints. They may institute piecemeal lawsuits, reflecting disparate concerns and not a coordinated enforcement program. The consequence would burden not only the defendants selected but also the judicial system. It was to avoid such possibilities of lack of coherence that Congress focused on the FTC as an exclusive enforcement authority.53

b. The enforcement scheme embodied in the Federal Trade Commission Act, stresses the Commission's role in providing certainty and specificity to the board proscriptions of the Act. The FTC, as a quasi-judicial tribunal, has the ability to provide for the centralized and orderly development of precedent applying the regulatory statute to a diversity of fact situations. The FTC is also available to act in an advisory capacity to those who are anxious to comply with the terms of the Act.54 This benefits not only advertisers, through certainty as to the applicable standard of conduct, but also consumers, by serving as a firm legal springboard for future FTC enforcement actions. These advantages would be endangered if thus central administrative tribunal were replaced by the various Federal courts invoked by private parties, even assuming that procedural devices for the control of class actions and the consolidation of multi-district litigation, plus the broad application of principles of collateral estoppel, might alleviate the extremes of inconsistency and multiplicity.

c. In its 1938 selection of the FTC as the appropriate body to prevent deceptive advertising, Congress contemplated use of that agency's proven capability of resolving trade practice controversies without the need to resort to litigation, and its procedural machinery to encourage voluntary compliance.55 The courts, on the other hand, have at their disposal only relatively rudimentary devices to promote settlements.56 More important, they lack the expertise and knowledge of business practices needed to evaluate whether any settlement by the parties is in furtherance of the broad public interest that is the foundation of the Act.

d. While the FTC's special expertise may not be raised as a barrier inhibiting the kind of judicial review of agency action that Congress prescribed and contemplated,57 it does and should inhibit the notion that a court may be injected into the pertinent subject-matter directly, without the benefit of FTC consideration. The Commission has developed a fund of knowledge as to the probable impact upon purchasers of particular advertising representations,58 and in recent years has been active in the evolution of new and innovative remedies to correct false advertising and to undo the effects of deceptive trade practices.59 These reflect the FTC's familiarity with advertising and merchandising techniques, and their effective use is furthered by the FTC's continuing involvement in both evolving and policing remedies.

c. Perhaps some of these disadvantages could be remedied in part by FTC intervention in private proceedings, or through judicial use of the "supple" doctrine of primary jurisdiction.60 But this could not retain the FTC's ability to control matters to be litigated in accordance with its priorities, to select its enforcement goals, and to husband its administrative and manpower resources.61 The effect of requiring the Commission to intervene whenever it felt that a private litigant might stray from its policies, impair its precedents, or disadvantageously compromise meritorious litigation makes it part hostage to private concerns, part competitor (in a race to the courthouse), and risks not only its resources but the extent of its contribution to the public interest.

We turn to appellants' contention that, because the FTC has no power to award damages to those victimized by false advertising, the courts must make compensatory damages recoverable in private actions. In general, or at least in many instances, the purpose and objective of Federal statutory prohibitions are likely to be furthered by judicial implication of compensatory remedies.62 But this generality is overridden as to the problem before us by the plain choice of Congress. This Act does not purport to affect a consumer's right to obtain damages in a common law action sounding in fraud or deceit, or in any expansion of that action that may evolve in common law jurisprudence. As for an action based on the Trade Commission Act, we are controlled by the Congressional purpose that this should not serve as a vehicle for redressing essentially private grievances.63 Realistically, any action to recover the excess price ascribable to unfounded claims is likely to involve small sums per consumer, and to be significant more as a deterrent than as a compensatory mechanism. But in 1938 Congress considered matters of deterrence and rejected several proposals for potent alternatives, e. g., liability of advertisers on a per se basis for civil penalties in all cases of misleading representations.64 The 1938 amendments relied instead on the FTC's cease and desist procedures, and their provision of opportunity for voluntary compliance and informal administrative conflict resolution.65 We are controlled by the balance struck by Congress.

3. The claimed ineffectiveness of the Commission

Appellants urge that, because of insufficient staff and competing demands in other spheres of its jurisdiction, the Commission is simply unable to provide effective enforcement in the field of false advertising. In this connection, they point to the fact that the Commission began an investigation of non-prescription pain relievers in the 1950's; that in 1961 complaints were filed against the appellee herein and other manufacturers, which were later withdrawn by the agency; that in 1967 rulemaking proceedings were instituted, only to be terminated in 1971 without the issuance of findings; and that there was no Commission action between January, 1971 and the argument of this appeal in September, 1972.

In the particular case, as it happens, the Commission moved on February 23, 1973, with issuance of complaints against Bristol-Myers and two other makers of non-prescription analgesics and their respective advertising agencies.66 But taking the matter broadly in terms of general need for private actions, and putting aside any consideration of the reasons that may have impelled the FTC to proceed with extreme caution in preparing enforcement proceeding against three of the nation's largest advertisers, the thrust of appellants' charge is misdirected. It is tantamount to a broad scale attack upon the Commission's effectiveness as an agency. Yet it is raised in a suit to which the Commission is not a party.

Charges like appellants' are no novelty. Similar comments were made during the Congressional debates on the very legislation that gave the Commission jurisdiction over food, drug and cosmetic advertising.67 Like complaints have been voiced on subsequent occasions.68 Yet Congress, has not seen fit to alter the statutory plan established in 1938.69

We have given full consideration to Case v. Borak, holding that private actions would lie to redress violations of Sec. 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78n(a), governing proxy disclosures.

Case v. Borak relied upon the general jurisdictional provision contained in Sec. 27 of the SEC Act, 15 U.S.C. Sec. 78aa.70 The presence of this provision reduced the degree of "judicial implication" brought to bear in developing a private remedy, since it provided a firm basis from which to begin the process of extrapolation.71 In contrast, the jurisdictional provisions of the Federal Trade Commission Act are specific, and expressly relate only to enforcement proceedings brought by the Commission or the Attorney General, or the review thereof.72

In Case, the Supreme Court referred to the difficulties faced by the SEC in examining the thousands of proxy statements filed annually and to that agency's limited resources.73 Significantly, the SEC intervened in Case v. Borak as amicus curiae, bringing to the Court's attention its limited resources and urging the recognition of private remedies as an adjunct to its own enforcement powers.74 In the matter before us, the FTC has not sought intervention, and we have reason to believe, as already noted, that the private remedy might well lie athwart rather than alongside the Commission's enforcement programs.

The SEC is primarily a clearance agency, and once its clearance responsibilities have been carried out and the proxy statement, registration statement, or the like has been permitted to become effective, there is little danger that an intervening private suit will derail the Commission's ongoing administrative processes. In the case of the Trade Commission, the corporation's dissemination of materials represents not the end of a (clearance) proceeding but the beginning of administrative scrutiny and a potential enforcement problem. It is this that underlies the problem, already discussed, that private actions may disrupt or incommode the FTC's own investigative or prosecutorial activities, say, by being brought at the wrong time, or against the wrong party, or in the wrong sequence, or without regard to settlement choices, etc.

The role of the courts in the enforcement of the Federal Trade Commission Act is one that comes into play primarily only after the Commission has set its administrative processes in motion. The court's role is not one of direct enforcement but one related to the administrative process-in part supervisory and in part collaborative.75

A fair reading of the statute and its legislative history evinces a plain intent by Congress to make the administrative program for enforcing the Federal Trade Commission Act an exclusive one. When a court fairly perceives how the legislature accomplished a resolution of the balance of forces, including compromise and concession, the court must abide the result without using its own scales to weigh the strength of the component vectors. To imply a private right of action to enforce the Federal Trade Commission Act-however desirable or logical this might appear in the abstract-would be contrary to the legislative design which we discern to have been deliberately wrought.

As to appellants' common law and equity claims, we are in complete accord with the ruling of Judge Jones.

Appellants' common law claims for money damages must be dismissed for want of the $10,000 amount in controversy necessary to establish jurisdiction under 28 U.S.C. Sec. 1332. The individuals comprising the class of appellants each suffered damages of minuscule proportions, "perhaps less than $5.00" (Appellants' Br. at 20). These claims cannot be aggregated merely because they are raised in a class action. Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969). If appellants wish to pursue any common law claims, they must have recourse to the Article I courts established by Congress for the District of Columbia.76

Concerning the claim based on general "equity" jurisprudence, there is no precedent for treating allegedly deceptive advertising as a "public nuisance," amenable to injunctive relief. Such a radical doctrine could brook much mischief, including a multitude of inconsistent state prohibitions and requirements. We have no warrant for conjecturing that the District of Columbia Court of Appeals would embark on such a course.

We need not dwell long on the possibility of an appeal to a federal equity jurisprudence. In 1938 Congress specifically rejected a proposal for the use of court injunctions against a "nuisance" of false drug advertising in interstate commerce,77 and instead relied on the FTC for enforcement.

Affirmed.