Opinion
PETERSON, J.
Appellant Alta-Dena Certified Dairy and its related corporate entities
appeal from a civil judgment entered in favor of respondents Consumers Union of U.S., Inc., the American Public Health Association, and
the People of the State of California on their civil complaints challenging Alta-Dena’s advertising practices. In affirming the judgment of the court below, we will hold, in the published portions of this opinion, that a trial court has the authority to order the placement of a warning on a commercial product to remedy the past effects of false advertising and unfair business practices.
I. Factual and Procedural Background
Alta-Dena operates what is estimated by some to be the world’s largest dairy. Its facilities in California include a large farm near Chino, a calving farm near Oakdale, a creamery in City of Industry, and various trucks and equipment. Some 85 percent or more of Alta-Dena’s production is dedicated to supplying pasteurized milk and related pasteurized milk products. The remainder of Alta-Dena’s production goes toward supplying raw certified milk and raw certified milk products. The present suit only involves the latter category of Alta-Dena’s consumer goods, i.e., its raw certified milk and raw certified milk products. Alta-Dena is the state’s largest producer of such products, supplying some 90 percent of the raw certified milk sold in the State of California.
As the name implies, raw certified milk is different from pasteurized milk. “Raw” means that the milk has not been subjected to pasteurization, while the term “certified” means that the milk has been produced under standards similar to those established by the American Association of Medical Milk Commissions. (See Food & Agr. Code, §§ 35861, 35891, 35921 et séq.)
Since the 1950’s, Alta-Dena has promoted its raw certified milk and raw certified milk products (hereafter collectively referred to as RCM) as possessing various health and safety attributes. Printed brochures distributed by Alta-Dena touted its RCM as the “safest” and “purest” milk available; “ideal” for infants and a “basic food” for invalids. Other brochures stressed RCM’s supposed health benefits over pasteurized milk and suggested that infants as young as two weeks old be fed a formula made from RCM and honey. Radio and television advertisements broadcast in both Northern and Southern California contained similar claims, asserting, for example, that RCM was produced under the “highest” standards and that certification made “pasteurization unnecessary.” The cartons in which RCM was sold also contained various advertising claims such as that RCM was “the highest quality milk” and was produced “under the strictest of health standards.”
A complaint challenging these advertising practices was filed by Consumers Union and the American Public Health Association (hereafter collectively
Consumers) in the Alameda County Superior Court in the summer of 1985.
Consumers alleged Alta-Dena’s advertising was false and misleading, in violation of the unfair competition law (Bus. & Prof. Code,
§ 17200 et seq.) and the false advertising act (§ 17500 et seq.). In addition, Consumers asserted that Alta-Dena had failed to comply with an Alameda County ordinance regulating the sale of RCM. The complaint sought temporary and permanent injunctive relief preventing Alta-Dena from falsely advertising the alleged benefits of its RCM, and requiring it to disclose the dangers associated with RCM’s consumption.
A preliminary injunction restraining Alta-Dena’s advertising practices was granted in September 1985. Then the following month, the court allowed the Alameda County District Attorney to file a complaint in intervention which substantially tracked the previous complaint which had been filed by Consumers.
A nonjury trial to consider the issues framed by the complaint and complaint in intervention began in October 1988; it continued for 54 days, during which 44 witnesses testified and approximately 800 exhibits covering some 40,000 pages were introduced. The evidence at trial overwhelmingly established that, contrary to the claims made in Alta-Dena’s advertisements, RCM: (1) can contain highly dangerous organisms, (2) is less safe than pasteurized milk, (3) does not possess superior health and nutritional benefits, and (4) is not produced under the strictest health standards in the industry. In the pages which follow, we summarize only a portion of the vast array of evidence introduced at trial.
A.
RCM Contains Harmful Bacteria and Can Be Dangerous
Alta-Dena’s RCM has frequently been found to contain disease-causing organisms. From 1974 to the time of trial, pathogens were found in Alta-Dena’s RCM approximately 250 times by various public and private laboratories. The pathogen found most frequently was a particularly dangerous type of salmonella known as salmonella dublin (hereafter S. dublin). The United States Food and Drug Administration (hereafter FDA) has classified S. dublin as “life threatening.” In California, approximately 80 percent of those who become ill with S. dublin are hospitalized and 20 percent die. Unlike less serious forms of salmonella which normally confine themselves to gastrointestinal illness, S. dublin frequently causes severe illness by
invading the bloodstream and deep-body sites. Since S. dublin mainly infects cows and is killed by heating, it is primarily found in raw milk. Other harmful bacteria isolated from RCM include salmonella St. Paul, brucella (which can cause a serious disease known as brucellosis or undulant fever), listeria monocytogenes, and Campylobacter.
The danger posed by the presence of these pathogens in RCM is very real. At trial, Consumers presented numerous examples of previously healthy persons who became ill after drinking Alta-Dena’s products. Mary Jo Thomas became ill with S. dublin in November 1984 after consuming Alta-Dena’s raw certified milk. Shortly before her illness, a laboratory isolated S. dublin in Alta-Dena’s RCM. Drinking the RCM caused an infection which resulted in a life-threatening aneurysm in Ms. Thomas’s heart. As a result, Ms. Thomas needed major surgery and must take antibiotics for the rest of her life.
Rosemary McQuinney and her husband, strict vegetarians, began drinking RCM after receiving Alta-Dena’s advertising materials at a health food convention in January 1983. After drinking the product for about five weeks, the couple developed high fever, nausea, vomiting, and diarrhea. The code on the container of RCM which they were drinking at the time of their illness indicated that it came from a batch of milk shown by state tests to contain salmonella.
In 1984, a group of kindergarten children visited Alta-Dena’s dairy and drank RCM on the tour. Some days later several of the children and the adults who had accompanied them became ill with Campylobacter as a result of the RCM they had consumed.
While consuming RCM is hazardous for normally healthy individuals, RCM is especially dangerous to those who have a reduced immunity as a result of illness or medical treatment. The elderly; pregnant women; those with cancer; those with AIDS and related HIV-positive conditions; those taking cortisone, antibiotics, or antacids; diabetics and alcoholics are particularly at risk because very small amounts of disease-causing organisms can make these consumers ill. Combined, these groups represent some 20 percent of the population of California. The AIDS cases are especially poignant since these persons, not realizing the danger of RCM, seek out the product because it is promoted as a health food, only to fall ill from consuming it.
RCM’s danger to those whose health is compromised is illustrated by the case of Ronald Warren who contracted S. dublin in July 1984 after his wife fed him Alta-Dena RCM hoping to improve his deteriorating health due to
alcoholism. Mr. Warren died a few weeks later, partly as a result of his S. dublin infection.
Infants too are at a special risk from pathogens contained in RCM because their immune systems are immature and their stomachs lack a needed type of acid. Further, despite Alta-Dena’s advertisements suggesting a formula of RCM and honey for infants as young as two weeks, for decades, doctors have recommended against babies drinking unmodified cow’s milk because it places an excessive load on their kidneys; while honey is known to cause potentially fatal infant botulism.
One illustration of the danger to infants from RCM is the case of Joshua Hamby, who previously had been fed breast milk and formula but was switched to RCM. Within days, Joshua became ill and was hospitalized with an S. dublin infection caused by his consumption of raw milk.
B.
RCM Is Less Safe Than Pasteurized Milk
Despite Alta-Dena’s claims to the contrary, RCM is less safe than pasteurized milk. Experts representing both sides at trial agreed that harmful bacteria in milk are killed by proper pasteurization. By contrast, certification, which relies solely on external cleanliness, cannot always eliminate harmful bacteria. Seemingly healthy looking cows known as “mammary shedders” can shed S. dublin from their mammary glands directly into their milk. As one expert stated, “you basically can’t scrub the inside of the cow.”
The FDA concluded after extensive hearings that “pasteurization, when performed as prescribed . . . , effectively eliminates
S. dublin
as well as numerous other harmful microorganisms.” State and federal testing conducted in the 1980’s found no salmonella or Campylobacter in pasteurized milk in California. Alta-Dena introduced no evidence of illness in California due to pasteurized milk.
C.
RCM Is Not Nutritionally Superior to Pasteurized Milk
Alta-Dena claimed its RCM was nutritionally superior to pasteurized milk. Its advertisements contained assertions such as “It is [a] matter of common knowledge that physicians, nutrition specialists and dietitians recommend . . . Raw Certified Milk” or that pasteurization reduces the vitamins in milk. In other advertisements, Alta-Dena claimed that RCM “may provide as much as a 30% increase in calcium absorption” over pasteurized milk.
In fact, experts at trial established that RCM possesses no significant nutritional advantage over pasteurized milk. The FDA concluded after extensive study, “The theoretical health benefits of raw milk have never
withstood scientific scrutiny. . . . FDA concludes that pasteurization does not significantly change the nutritive or immunologic value of milk and that the risks associated with the consumption of raw milk, including certified raw milk, outweigh any alleged health benefits that may arise from consuming raw milk and certified raw milk.”
D.
Alta-Dena’s RCM Is Not Produced Under the Strictest Health Standards
Many of Alta-Dena’s advertisements stated that its RCM was produced under stricter bacteriological and health standards than pasteurized milk. Slogans such as “produced under the strictest standards in the industry” were used on many of Alta-Dena’s products. Other advertisements noted that the standards for RCM allow for fewer bacteria to be present than in pasteurized milk and, thus, implied that RCM was safer.
In fact, expert testimony at trial established that bacterial standards bear little relation to the safety of milk. The standards to which Alta-Dena referred measure only the total bacteria present in milk; harmful bacteria are not separated from those which are beneficial or benign. Thus, while RCM may possess fewer bacteria, the bacteria which are present can be, and at times are, more dangerous. Contrary to the advertisement’s clear implication, the simple fact that fewer bacteria are present in RCM does not mean it is safer.
Further, despite Alta-Dena’s assertion that the strictest health standards were followed in producing RCM, Alta-Dena failed to comply with the standards it advertised a significant portion of the time. Records introduced at trial established that Alta-Dena’s “finished product” failed to comply with the applicable bacteriological standards at least 20 percent of the time between 1980 and 1988. Alta-Dena’s top management was aware that the advertised standards were being exceeded regularly, but did nothing to recall the products or to modify its advertising.
E.
Remedies Imposed by the Trial Court
Faced with the overwhelming testimonial and documentary evidence establishing the false and misleading quality of Alta-Dena’s advertising, the court employed some unusual remedies. The court issued an injunction permanently enjoining Alta-Dena from making false or misleading claims about the health, safety, or nutritional qualities of its RCM, or from making misleading claims about the health standards under which it was produced. In addition, the court ordered Alta-Dena to disclose the dangers of RCM by
placing a warning on its RCM products for 10 years stating, “Warning: This Milk May Contain Dangerous Bacteria. Those Facing the Highest Risk of Disease or Death Include Babies, Pregnant Women, the Elderly, Alcoholics, Those With Cancer, AIDS or Reduced Immunity and Those Taking Cortisone, Antibiotics or Antacids. Questions Regarding the Use of Raw Certified Milk Should Be Directed to Your Physician.”
The court also ordered Alta-Dena to place a disclosure on all of its advertisements which contain representations concerning the health or nutritional benefits of RCM. For 10 years, such advertisements must bear the following statement, “Warning: The Food and Drug Administration (FDA) Has Determined (1) That There is no Satisfactory Scientific Proof That Pasteurization Significantly Reduces the Nutritional Value of Milk and (2) That the Risks Associated With Consuming Raw Certified Milk Outweigh Any of Its Alleged Health Benefits.”
In addition to the injunction and disclosure statements, the court ordered Alta-Dena to pay the sum of $100,000 as restitution to the California Attorney General’s Office. Civil penalties of $23,000 were also imposed. Finally, the court awarded Consumers its attorney fees under Code of Civil Procedure section 1021.5.
After a judgment setting forth these rulings was entered, Alta-Dena filed the present appeal.
II. Discussion
A.
Authority to Order the Placement of a Warning on Consumer Products to Remedy the Past Effects of False Advertising
Alta-Dena first maintains the trial court lacked the authority to order that a warning label be affixed to its consumer products.
We disagree.
The trial court based its order on the authority granted to it under California’s consumer protection statutes: the unfair competition law (§ 17200 et seq.) and the false advertising act (§ 17500 et seq.). Under the unfair competition law, “unfair or fraudulent business practice[s] and unfair,
deceptive, untrue or misleading advertising” are prohibited. (§ 17200.) The false advertising act prohibits the dissemination in any advertising media of any “statement” concerning real or personál property offered for sale “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading . . . .” (§ 17500.) Both the unfair competition law and the false advertising act contain broad remedial provisions which authorize the courts to correct violations. Sections 17203 and 17535
each expressly recognize the authority of the courts to “make such orders or judgments . . . as may be necessary to prevent the use or employment” of deceptive advertising or unfair competition.
While we have found no case directly on point, we believe the authority granted under sections 17203 and 17535 was sufficient to permit the trial court to order the placement of a warning on Alta-Dena’s products. The remedial power granted under these sections is extraordinarily broad. Probably because false advertising and unfair business practices can take many forms, the Legislature has given the courts the power to fashion remedies to prevent their “use or employment” in whatever context they may occur. The circumstances surrounding Alta-Dena’s false advertising fully support the conclusion that a warning was required, and that the trial court did not abuse its discretion in ordering Alta-Dena to place a warning on its consumer products. Expert witnesses at trial established that, as the result of its longstanding and broad-based advertising campaign, Alta-Dena had created a public perception that its RCM was safe and nutritionally superior to pasteurized milk. The warning statement mandated by the trial court is valid as
necessary to correct that misperception. As another court has noted in analogous circumstances, “To allow consumers to continue to buy the product on the strength of the impression built up by prior advertising—an impression which is now known to be false—would be unfair and deceptive.”
(Warner-Lambert Co.
v.
F. T. C.
(D.C. Cir. 1977) 562 F.2d 749, 761 [183 App.D.C. 230, 46 A.L.R.Fed. 873].)
Furthermore, the court’s authority to “prevent the use or employment” of unfair business practices and false advertising necessarily includes the authority to make orders to prevent such activities from occurring in the future. While an injunction against future violations might have some deterrent effect, it is only a partial remedy since it does not correct the consequences of past conduct. (Cf.
Fletcher
v.
Security Pacific National Bank
(1979) 23 Cal.3d 442, 451 [153 Cal.Rptr. 28, 591 P.2d 51].) An “order which commands [a party] only to go and sin no more simply allows every violator a free bite at the apple.”
(Warner-Lambert Co.
v.
F. T. C., supra,
562 F.2d at pp. 761-762, fn. 60, internal quotation marks omitted.) The warning statement mandated by the trial court is necessary to deter Alta-Dena from conducting similar misleading advertising campaigns in the future.
Requiring affirmative disclosure of information as a remedy for consumer deception is not without precedent in California. In
Ford Dealers Assn.
v.
Department of Motor Vehicles
(1982) 32 Cal.3d 347, 363-365 [185 Cal.Rptr. 453, 650 P.2d 328], our Supreme Court upheld regulations adopted by the Department of Motor Vehicles which mandated that prospective buyers be told that automobiles had previously been rented. The federal courts too have approved affirmative disclosures in a variety of contexts. In
Lorain Journal
v.
United States
(1951) 342 U.S. 143, 156 [96 L.Ed. 162, 173, 72 S.Ct. 181], the United States Supreme Court upheld an injunction requiring a newspaper to publicly disclose the terms of a judgment against it by publishing it each week for 25 weeks. In numerous cases brought pursuant to the Federal Trade Commission Act, the federal courts have approved of mandatory disclosures. (See, e.g.,
Thompson Medical Co., Inc.
v.
F.T.C.
(D.C. Cir. 1986) 791 F.2d 189, 196-197 [23 App.D.C. 18] [disclosure required on labels and advertising that product did not contain aspirin];
Grolier Inc.
v.
F.T.C.
(9th Cir. 1983) 699 F.2d 983, 987 [written warning card describing purpose of visit must be given to consumer before all sales presentations];
Porter & Dietsch, Inc.
v.
F. T. C.
(7th Cir. 1979) 605 F.2d 294, 306-307 [printed warning of health risk for users with certain listed conditions required in future advertisements in addition to warnings already contained on label];
Warner-Lambert Co.
v.
F. T. C., supra,
562 F.2d at pp. 760-761 [warning that product does not yield previously advertised health
benefits required in future advertisements];
Keele Hair & Scalp Specialists, Inc.
v.
F. T. C.
(5th Cir. 1960) 275 F.2d 18, 23 [affirmative disclosure required in future advertisements of what product will not do].)
Alta-Dena’s primary argument against the court’s authority to order the placement of warnings on its consumer products is a constitutional one. Noting that the regulation of businesses in an attempt to safeguard the public health is traditionally a legislative function (see, e.g.,
Lewis Food Co.
v.
State of California
(1952) 110 Cal.App.2d 759, 762 [243 P.2d 802]), Alta-Dena argues that, in ordering it to place a warning on its products, the trial court unconstitutionally exercised legislative powers in violation of the separation of powers clause in the California Constitution.
This argument misperceives the extent to which the judicial branch is limited by the constitutional separation of powers. “The purpose of the doctrine is to prevent one branch of government from exercising the
complete
power constitutionally vested in another [citation]; it is not intended to prohibit one branch from taking action properly within its sphere that has the
incidental
effect of duplicating a function or procedure delegated to another branch.”
(Younger
v.
Superior Court
(1978) 21 Cal.3d 102, 117 [145 Cal.Rptr. 674, 577 P.2d 1014], italics in original.)
Applying this distinction, the court in
Younger
v.
Superior Court, supra,
21 Cal.3d 102, held that a provision of the Health and Safety Code, which mandated the destruction of criminal records, did not infringe upon the executive power of clemency. Noting that the section was not enacted as an act of grace, but as a means of implementing the legislative objective of reducing the adverse effects of convictions, the court held any infringement on the executive powers was purely incidental to the main purpose of the
statute and, thus, was permissible.
(Id.
at p. 118.) Similarly, in
Way
v.
Superior Court
(1977) 74 Cal.App.3d 165 [141 Cal.Rptr. 383], a section of the Penal Code which provided for the retroactive application of the determinate sentencing law was challenged as an unconstitutional infringement upon the Governor’s power of commutation. The court rejected the argument, reasoning that the intent of the section was not to commute existing sentences, but to bring them into line with sentences under the new law. Since the shortening of certain prison terms was incidental to the main legislative purpose, it did not violate the constitutional separation of powers.
(Id.
at pp. 177-178.)
Here, the primary purpose of the unfair competition law and the false advertising act is to protect the public from unscrupulous business practices. The mere fact that in carrying out this function, as for example by mandating the placement of a warning on a consumer product, a court may incidentally duplicate a legislative function does not result in a violation of the separation of powers doctrine.
Alta-Dena’s alternate arguments against the trial court’s authority to mandate the placement of a warning on its products are no more persuasive. It maintains that the sole authority granted by sections 17203 and 17535 was the power to grant prohibitory injunctions and, thus, that an order directing it to place warnings on products sold in the future was not authorized. This is clearly incorrect. Both sections authorize the courts to “restore to any person in interest any money or property . . . which may have been acquired,” effectively granting broad restitutionary powers. Moreover, sections 17203 and 17535 both give the courts the authority to “make such orders or judgments ... as may be necessary to prevent the use or employment” of deceptive advertising or unfair competition. As we have noted above, the power to prevent the use or employment of false advertising and unfair business practices necessarily includes the power to correct false impressions built up by prior advertising, and the power to deter future violations. (See
Warner-Lambert Co.
v.
F. T. C., supra,
562 F.2d at p. 761;
Fletcher
v.
Security Pacific National Bank, supra,
23 Cal.3d at p. 451.) One way to accomplish these goals is to order a violator to take affirmative action. An order mandating the placement of a warning on products sold in the future is well within the meaning and intent of the statutes.
Alta-Dena also argues it is unfair to require it to place a warning label on its RCM because other persons and entities which sell similar
products will not be required to comply.
However, there is no evidence that other producers of RCM engaged in false and deceptive advertising as did Alta-Dena; thus, there is no need for such a warning. In any event, absent charges of invidious discrimination, prosecutors have broad discretion to choose which defendants to prosecute and in what order.
(People
v.
Superior Court (Lyons Buick-Opel-GMC, Inc.)
(1977) 70 Cal.App.3d 341, 344 [138 Cal.Rptr. 791].) Alta-Dena has produced no evidence of invidious discrimination, and we discern no abuse of discretion.
Finally, Alta-Dena maintains Consumers’s action was improper because Consumers failed to exhaust its administrative remedies prior to filing suit by asking the California Department of Health Services to mandate the placement of a warning on all raw milk and raw milk products. However, Alta-Dena failed to raise this argument in the court below and, thus, has waived the right to have it considered on appeal.
(Green
v.
City of Oceanside
(1987) 194 Cal.App.3d 212, 219-223 [239 Cal.Rptr. 470]; see also
Wallis
v.
Farmers Group, Inc.
(1990) 220 Cal.App.3d 718, 735 [269 Cal.Rptr. 299];
Sacramento County Deputy Sheriffs’ Assn.
v.
County of Sacramento
(1990) 220 Cal.App.3d 280, 286 [269 Cal.Rptr. 6].) Indeed, since Alta-Dena first raised this argument in its reply brief, it has doubly waived the right to have it considered on appeal. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 496, pp. 484-485.)
B.-I
III. Disposition
The judgment is affirmed.
We remand to the trial court so it may determine the amount of attorney fees to which Consumers is entitled as the result of its efforts on appeal. (See
Serrano
v.
Unruh
(1982) 32 Cal.3d 621, 637-639 [186 Cal.Rptr. 754, 652 P.2d 985].)
Costs are awarded to respondents.
Smith, Acting P. J„ and Benson, J„ concurred.
A petition for a rehearing was denied April 13, 1992, and appellants’ petition for review by the Supreme Court was denied June 25, 1992.