Bristol-Myers Company

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IN THE MATTER BRISTOL-MYERS COMPANY, ET AL.

1)ocJpt 8911\ Interlout Jan. 29, 1980 ORDER DENYING RESPONDENT BRISTOL-MYERS COMMISSION TAKE OFFICIAL NOTICE OR THAT RECORD On November 26, 1979, respondent, Bristol-Myers Company, ("Bristol-Myers ) filed a motion requesting the Commission to take official notice of selected newspaper reports about the initial decision in this case, or reopen the record so those reports could be introduced into evidence. Bristol-Myers contends that these reports have misstated the findings made by the administrative law judge, demonstrating that the press has misunderstood not only the tenor of the initial decision but also the affirmative disclosures which Bristol-Myers has been ordered to include in its comparative advertising. The respondent argues that the reports consequently provide direct evidence of the likelihood that consumers wil also misconstrue the affirmative advertising disclosures. Complaint counsel answered Bristol-Myers motion on December 3, 1979, opposing it on grounds that the newspaper reports are neither reliable nor probative evidence of eonsumers' understanding of the affirmative disclosures. At this point in the proceedings at least, we are not persuaded of a need either to notice the proferred clippings officially or to reopen the record for the introduction into evidence. The newspaper report seem in fact, to be only dimly relevant to the issue of consumer perceptions. The respondent's motion does not state that newspapers have generally mischaracterized the affirmative disclosures which would be given to consumers; rather the motion asserts only that the press has misconstrued the findings on which the order of the administrative law judge is based. On tbe other hand, we also note from the motion that one of the respondent's witnesses has already testified directly about the probable impact on eonsumers of affirmative disclosures that are similar or identical to those set forth in the initial decision. Therefore it is not apparent that the selected newspaper reports constitute evidence necessary or helpful to a proper resolution of this case. Accordingly, It is ordered That Bristol-Myers' motion be and hereby is denied. Commissioner Pitofsky did not participate.

1 The Commi!lion may at any time take offcii! noticeofappropriate matena! on i13 own motion. Puru.ant tC Rule 3.43d), however paries are entitled todisprove an offieiillly notice fac if the Commissori' s decision iab8 on it, in whole or in par, and it is a material fact that doe notappe in evidence of rerd. Complaint 95 F.