Consumer Protection Division Office of the Attorney General v. Consumer Publishing Co.

ELDRIDGE, Judge. We granted certiorari in this case to resolve several issues under the Maryland Consumer Protection Act, Maryland Code (1975, 1983 Repl.Vol.), Title 13 of the Commercial Law Article. Consumer Publishing Company is an Ohio corporation which, under various names, sells “diet” pill plans through the mails. The active ingredient in the pills sold by the Company is phenylpropanolamine hydrochloride (PPA).

The Company has promoted its products with full-page advertisements in Maryland newspapers and has made sales to consumers in Maryland. On May 20, 1981, the Consumer Protection Division of the Office of the Attorney General ⁷³⁸ filed charges against the Company alleging that its advertisements offering pills for sale in Maryland contained false and misleading statements in violation of the Maryland Consumer Protection Act. At the administrative hearing on these charges, the Division presented two witnesses: (1) Dr. Thaddeus E. Prout, Chief of Medicine at the Greater Baltimore Medical Center, Associate Professor of Medicine at the Johns Hopkins University School of Medicine and former Chairman of a Food and Drug Administration advisory committee on anti-obesity drugs; and (2) Dr. Thomas Pozefsky, Assistant Professor of Medicine at the Johns Hopkins University School of Medicine and a private practitioner specializing in the treatment of patients with weight problems. Both Dr. Prout and Dr. Pozefsky explained that the major components of a successful weight loss program are consumption of less calories than are burned in normal activities, continued motivation, and behavior modification.

Dr. Prout testified that the successful treatment of obesity occurs in an extremely small number of cases. Both doctors agreed that permanent weight loss is comparatively rare because of the underlying psychological need to eat. Dr. Prout testified that PPA has been available for 20 years and is primarily a nasal decongestant. He further stated that there is no evidence that it significantly affects hunger and that its effect on weight loss is trivial.

In his opinion, PPA is “not an effective agent in weight loss,” and he cited clinical studies which indicated that weight loss due to taking PPA is approximately six ounces per week. Dr. Pozefsky testified that a weight loss of about one half pound per week for four weeks is the maximum which can be expected from taking PPA. He also testified that in his opinion excessive appetite is probably not a significant cause of obesity. The Division introduced as exhibits the following: four advertisements which had run between January 7, 1979, and March 22, 1981; examples of the pills and accompanying ⁷³⁹ materials sent to consumers; an OTC Miscellaneous Internal Drug Product Panel Study of weight control products; and portions of a publication entitled AMA Drug Evaluations.

The Company called Dr. Bartley G. Hoebel, Assistant Professor of Psychology at Princeton University and an expert in obesity. Dr. Hoebel testified that PPA is an effective appetite suppressant and that it is statistically effective in helping people lose weight, although he stated that he was not testifying as to clinical effectiveness and he could not say that PPA would work for everyone. He acknowledged that there is no data regarding the effects of PPA over long periods of time. Dr. Hoebel also admitted that typical weight loss in his studies of PPA was less drastic than the weight loss described in the Company’s advertisements.

The Company also submitted studies which Dr. Hoebel had relied on, at least some of which were financed by a manufacturer of PPA. The hearing officer, Professor Charles Shafer of the University of Baltimore School of Law, was specially appointed for the administrative hearing. He submitted proposed findings of fact, conclusions of law and a proposed order based on the evidence. The Company then filed exceptions to the proposed findings and order, and a hearing on the exceptions was held before H. Robert Erwin, then Chief of the Consumer Protection Division.

Following that hearing, both parties filed additional factual and legal material for Mr. Erwin’s consideration. After some delay, Mr. Erwin issued his ruling on the exceptions and a final order on April 13, 1983. The final order adopted most of the findings of fact and conclusions of law proposed by the hearing officer. Based on these findings it ordered the Company to cease and desist from representing 1) that its diet plan consists primarily of taking any pill or tablet when, in fact, the plan also includes a low-calorie diet program, 2) that use of the pill or plan will cause a reduction in weight without the ⁷⁴⁰ need to exercise individual will power, 3) that the use of any appetite suppressant, the primary ingredient of which is PPA, will prevent hunger, or end the cause of hunger, or prevent excessive consumption of food, 4) that pills, the primary ingredient of which is PPA, are recent medical discoveries or have only recently been used in diet programs, 5) that pills, whose primary ingredient is PPA, will increase the body’s metabolic rate or will otherwise increase the rate at which the body converts fat cells to energy, 6) that use of the pills or plan will result in a significant weight loss for substantially all users when in fact it will not for at least 50% of the users, 7) that users of the pills or plan may expect to experience certain amounts of weight or inches lost without indicating weight or inches lost by- the typical prospective purchaser with the kind of supervision typically received, and 8) that the pill or plan has been the subject of scientific, academic, or clinical testing which proves its value as a weight loss program unless such tests are generally accepted in the medical community as demonstrating the value of the pill or plan in the treatment of obesity.

The final order required affirmative disclosures in future advertising, including disclosure of the active ingredients of the pills and a bold-faced notice stating that “DIETING IS REQUIRED.” The order also required the Company to restore “the initial purchase price, including postage, of such products (excluding reorders)” to all residents of Maryland who had purchased the products between May 19, 1978, and December 31, 1981. Finally, the order required the Company to make available to the Division business records which identify Maryland consumers entitled to such restitution. The Company sought review of the order in the Circuit Court for Baltimore City. Hearings were held before the court on February 7, 8 and 9, 1984, and additional evidence was received.

In a judgment entered on February 21, 1984, the circuit court vacated the Division’s final order and substituted a new order allowing the Division to enforce the ⁷⁴¹ terms of an agreement which had been entered between the Company and the United States Postal Service. The trial judge found that the Company’s constitutional rights under the First Amendment and the Fourteenth Amendment had been violated and that “the record is insufficient to support a factual basis for the rejection of the [Company’s] exceptions.” The Division filed an order of appeal from that judgment on March 14, 1984. On March 21, 1984, the Company filed a motion for revision of the judgment under former Maryland Rule 625(a), 1 requesting costs and reasonable expenses, including attorney’s fees. The Company contended that the proceeding against it was initiated in bad faith and without substantial justification, entitling it to costs and reasonable expenses in accordance with former Maryland Rule 604b. 2 The circuit court denied the motion on the ground that the court was without jurisdiction to revise an order from which an appeal had been taken.

The Company filed an order of appeal from this denial. Before any proceedings in the Court of Special Appeals, we granted a petition for a writ of certiorari, bringing both appeals before this Court. In its appeal, the Division argues that the circuit court exceeded its authority by substituting its own remedy for the Division’s order and erred by improperly admitting additional evidence at the trial. The Division also argues that the Company’s constitutional rights were not violated and that the Division’s findings and final order are supported by the record.

The Company responds by defending the circuit court’s action and by asserting that the administrative order was subject to reversal on various grounds. In addition, the Company has filed a motion to dismiss the Division’s appeal. ⁷⁴² I. Preliminarily, the Company argues in its motion to dismiss that the Consumer Protection Division of the Office of the Attorney General has no authority to seek review of the circuit court’s decision. The Company relies on a line of cases, beginning with Zoning Appeals Board v. McKinney, 174 Md. 551 , 199 A. 540 (1938), in which this Court has taken the position that certain administrative agencies acting in a “quasi-judicial” capacity cannot appeal the reversal of their decisions by a circuit court, unless the authority to appeal is specifically provided by statute. See, e.g., County Comm’rs of Carroll Co. v. Gross, 301 Md. 473 , 483 A.2d 755 (1984); Maryland Board v. Armacost, 286 Md. 353, 355 , 407 A.2d 1148 (1979); Employment Sec. Adm. v. Smith, 282 Md. 267, 269-270 , 383 A.2d 1108, 1110 (1978); Board of Landscape Architects v. McWilliams, 270 Md. 383 , 311 A.2d 792 (1973); Liquor License Board v. Leone, 249 Md. 263 , 239 A.2d 82 (1968); Md. Pharmacy Board v. Peco, 234 Md. 200, 202-203 , 198 A.2d 273, 274 (1964).

The rationale for these decisions is set forth in Zoning Appeals Board v. McKinney, supra, where this Court concluded that a zoning board had no authority to appeal from a court order reversing its decision to grant a building permit. After examining the statutory provisions governing the zoning board, the Court stated that the Board exercises a function which “is in its nature judicial. It grants or withholds highly valuable privileges accordingly as it from evidence finds the existence of facts which justify one course or the other. It has no executive duties, it formulates no policies, its function is merely to find facts, to apply to those facts rules of law prescribed by the Legislature, and to announce the result.

It has no interest, personal or official, in the matters which come before it other than to decide them according to the law and the proved fact, and it is in no sense a party to such proceedings.” 174 Md. at 560-561 , 199 A. 540 . ⁷⁴³ The Court went on to state that the nature and character of the agency “preclude[d] the hypothesis that the legislature intended that it should have the power to engage in litigation involving the legality or propriety of its decisions” and that “... the Board has no more right to appeal from its own decisions to the Baltimore City Court, or, from the decisions of that court to the Court of Appeals, than a justice of the peace, or such an agency as the State Industrial Accident Commission, would have to appeal from the judgments of a court reversing their decisions.” (Id. at 562). Later, in Md. Pharmacy Board v. Peco, supra, the Court held that the Board of Pharmacy did not in the case before it qualify as an “aggrieved party” because the statutory function exercised in the case was “quasi-judicial and not adversary” and that the Board was “only a party in the circuit court for the purpose of producing the record ... or notifying the parties ‘to the proceeding before it.’ ” 234 Md. at 202 , 198 A.2d 273 . On the other hand, this Court has always recognized that the McKinney doctrine does not apply to all agencies. In McKinney itself the Court said ( 174 Md. at 561 ): “There are administrative boards and agencies, such as the State Tax Commission and the Public Service Commission, the functions of which are so identified with the execution of some definite public policy as the representative of the State, that their participation in litigation affecting their decisions is regarded by the Legislature as essential to the adequate protection of the State’s interests.” In particular, the McKinney doctrine has never been applied to a governing body or a constitutional officer in the Executive Branch of the State Government.

We have held that the City of Baltimore may appeal the reversal of decisions of the Board of Municipal and Zoning Appeals of Baltimore. Baltimore City v. Borinsky, 239 Md. 611 , 212 ⁷⁴⁴ A.2d 508 (1965); Mayor & C.C. of Balto. v. Shapiro, 187 Md. 623 , 51 A.2d 273 (1947). Because “the City has a legitimate interest in the effectuation of its policies,” 239 Md. at 616 , 212 A.2d 508 , it also has an interest in the outcome of litigation involving a City zoning ordinance. In County Comm’rs of Carroll Co. v. Gross, supra, 301 Md. 473 , 483 A.2d 755 , we recently held that McKinney does not apply to a board of county commissioners.

In that case, the Board of County Commissioners of Carroll County sought to intervene as of right in an appeal to the circuit court from the board of zoning appeals of that county. Gross argued that, under McKinney and its progeny, the Board could not intervene. This Court held that McKinney did not apply and that the Board had a right to intervene. The Court quoted extensively from Judge Wilner’s opinion for the Court of Special Appeals in Bd. of Co. Comm ’rs v. H. Manny Holtz, Inc., 60 Md.App. 133, 143-144 , 481 A.2d 513 (1984), where it was said that “the board of county commissioners ... functions as the county government.

It is the county body politic ... [exercising] legislative, quasi-legislative, executive and quasi-judicial authority, sometimes in combination. “To equate this unique body with an administrative zoning board whose jurisdiction and concern is carefully circumscribed would be ... unrealistic----” See Md. Port Adm. v. C.J. Langenfelder, 50 Md.App. 525 , 438 A.2d 1374 (1982) (the Maryland Port Administration, an administrative unit within the State Department of Transportation may seek judicial review of decisions of the Department’s Board of Contract Appeals). The Consumer Protection Division of the Office of the Attorney General is not the kind of non-adversarial, quasi-judicial agency contemplated by McKinney, Peco and their progeny. The Division is part of the Attorney General’s office, and the ultimate administrative authority is the Attorney General himself. The Attorney General is a constitutional officer, Maryland Constitution, Art. V, whose duties include prosecuting and defending cases on behalf of ⁷⁴⁵ the State in order to promote the State’s policies and protect its rights.

State v. Burning Tree Club, 301 Md. 9, 34 , 481 A.2d 785 (1984). The Consumer Protection Division acts as an arm of the Attorney General, entrusted with broad powers to enforce and interpret the Consumer Protection Act, Code (1975,1983 Repl. Vol.), Title 13 of the Commercial Law Article, and with a mandate to protect and promote the welfare of consumers. The statutory powers of the Division include the power to receive and investigate consumer complaints, initiate its own investigation of any possibly unfair and deceptive trade practice, issue cease and desist orders, adopt rules and regulations which further define unfair or deceptive trade practices or otherwise effectuate the purposes of the Act, and seek a temporary or permanent injunction in a civil enforcement proceeding. §§ 13-204 and 13-403(c)(2).

The statute further provides that the Division may “[ejxercise and perform any other function, power and duty appropriate to protect and promote the welfare of consumers.” § 13-204(11). In regulations promulgated pursuant to statutory authority, §§ 13-204(12) and 13-205, the Division sets forth the Rules of Practice and Procedure governing cease and desist order hearings. These regulations provide that in cases such as the one at bar, where the Division itself initiates an investigation, the Division is the party proponent. COMAR 02.01.02.14B.

The party proponent has the obligation of demonstrating probable cause that a violation of the Consumer Protection laws has occurred. COMAR 02.01.02.14C. The regulations further provide that in cases where the Division itself acts as the party proponent, “the Attorney General shall appoint a special hearing officer to conduct the proceedings who has had no prior contact or information with respect to the proceedings.” COMAR 02.01.02.14D. The statute and the regulations promulgated under it contemplate an adversarial proceeding, with the Division prosecuting its case at the hearing as a party.

In this case the Division served pleadings on the Company, cross-examined ⁷⁴⁶ Company witnesses, made legal arguments and filed briefs. In sum, the Consumer Protection Division functions as a civil prosecutor. The Consumer Protection Division exercises a broad range of functions including rulemaking, investigating and prosecuting alleged violators of the statute, and holding cease and desist order hearings. The functions of the Division are closely “identified with the execution of ... public policy as the representative of the state.” McKinney, supra, 174 Md. at 561 , 199 A. 540 .

With its many different functions, its mandate to protect consumers and its role as a representative of the interests of the State, the Division is not the type of agency to which the rationale of McKinney applies. It has a strong interest in the outcome of its case against the Consumer Publishing Company, a case which it initiated and vigorously prosecuted. The Division is clearly aggrieved by the reversal of its order by the circuit court and, therefore, may seek appellate review of the circuit court’s decision. 3 II. The Consumer Protection Division argues that the circuit court exceeded its statutory authority by substituting its own remedy for the Division’s final order.

The Division also argues that the trial court erred by considering and relying on evidence which was not in the administrative record. A. When the case was in the court below, the Administrative Procedure Act, former Art. 41, § 255(f), provided ⁷⁴⁷ that a circuit court reviewing an agency decision could affirm, remand, reverse or modify the administrative order. 4 In this case, the circuit court, after reversing the Division’s final order, ordered that “the agreement entered into by the Appellants with the United States Postal Service be substituted therefor.” We hold that this action exceeded the trial court’s statutory authority. The Company argues that the circuit court’s substitution of the Postal Service agreement fell within the statutory authority to “modify” the administrative order. In our view, the authority to “modify” cannot be stretched to include replacing the agency’s order with an entirely distinct one based on an agreement between the Company and the Federal Government.

Furthermore, in a proceeding such as this, it is the function of the Consumer Protection Division to determine the appropriate remedy for violations of the Consumer Protection Act. By substituting the Postal Service Agreement for the Division’s order, the circuit court usurped that function. As this Court said in O’Donnell v. Bassler, 289 Md. 501, 509-511 , 425 A.2d 1003 (1981): “It is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. Courtney v. Board of Trustees of ⁷⁴⁸ the Md. State Retirement Systems, 285 Md. 356, 362 , 402 A.2d 885, 889 (1979); Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394-96 , 396 A.2d 1080, 1089 (1979); ____ This principle underlies the rule that if an administrative function remains to be performed after a reviewing court has determined that an administrative agency has made an error of law, the court ordinarily may not modify the agency order.

Under such circumstances, the court should remand the matter to the administrative agency without modification. South Prairie Constr. Co. v. Local No. 627, IUOE, 425 U.S. 800, 805-06 , 96 S.Ct. 1842, 1844-45 [ 48 L.Ed.2d 382 ] (1976); NLRB v. Food Employees Local 347, 417 U.S. 1, 9-11 , 94 S.Ct. 2074, 2079-80 [ 40 L.Ed.2d 612 ] (1974); FPC v. Idaho Power Co., 344 U.S. 17, 19-21 , 73 S.Ct. 85, 87 [ 97 L.Ed. 15 ] (1952); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145 , 60 S.Ct. 437, 442 [ 84 L.Ed. 656 ] (1940); Pistorio v. Zoning Bd. of Howard County, 268 Md. 558, 567-70 , 302 A.2d 614, 619 (1973); Montgomery v. Board of County Comm’rs for Prince George’s County, 256 Md. 597, 604 , 261 A.2d 447, 450-51 (1970); Board of County Comm’rs for Prince George’s County v. Brown, 253 Md. 632, 639-42 , 253 A.2d 883, 888-89 (1969); .... Of course, the court need not remand if the modification is so minor as to make remand inappropriate.

Idaho Power Co., 344 U.S. at 20 , 73 S.Ct. at 87 ; Board of County Comm’rs for Prince George’s County v. Meltzer, 239 Md. 144, 156-57 , 210 A.2d 505, 512 (1965), or if remand is otherwise futile. Hooper v. Mayor of Gaithersburg, 270 Md. 628, 637 , 313 A.2d 491, 496 (1974); Chevy Chase Village v. Montgomery County Council, 258 Md. 27, 40, 44 , 264 A.2d 861, 867-68, 869-70 (1970); Williams v. Washington Metropolitan Area Transit Comm’n, 415 F.2d 922, 939-43 (D.C.Cir.1968), cert. denied, 393 U.S. 1081 , 89 S.Ct. 860 [ 21 L.Ed.2d 773 ] (1969). Finally, if an administrative function remains to be performed, a reviewing court may not modify the administrative agency’s action even when a statute provides that the court may ⁷⁴⁹ ‘affirm, modify or set aside’ because a court may not usurp administrative functions. Food Employees Local 347, 417 U.S. at 3 , 94 S.Ct. at 2077 ; Idaho Power Co., 344 U.S. at 21 , 73 S.Ct. at 87 ; Pottsville Broadcasting Co., 309 U.S. at 144 , 60 S.Ct. at 442 ; Federal Radio Comm’n v. General Electric Co., 281 U.S. 464, 467 , 50 S.Ct. 389, 390 [ 74 L.Ed. 969 ] (1930).” The order of the circuit court, substituting the Postal Service Agreement for the Division’s final order, exceeded the court’s statutory authority and usurped administrative functions.

It must, therefore, be reversed. B. Generally, in reviewing agency action under the Administrative Procedure Act, a court may only consider the record made before the administrative agency. E.g., Cicala v. Disability Review Bd., 288 Md. 254, 260 , 418 A.2d 205 (1980); Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 316-317 , 289 A.2d 303, 310 (1972). There are, however, two narrow exceptions to this general rule.

First, under the Administrative Procedure Act, Code (1957, 1982 Repl. Yol.), Art. 41, § 255(d), if “it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper.” (Emphasis added.) Second, “[i]n cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court.” § 255(e). 5 The first exception only permits the court to order that additional evidence be taken before the agency. It does not permit the court to receive the evidence itself. See ⁷⁵⁰ Breedon v. Maryland Department of Educ., 45 Md.App. 73, 86-87 , 411 A.2d 1073 (1980).

Accordingly, the only evidence beyond the administrative record which may properly be received by the reviewing court is that encompassed by the second exception, ie., evidence of alleged procedural irregularities. The evidence admitted by the circuit court was as follows: testimony and exhibits as to the market share of the Company and the amount of business it does in Maryland, examples of similar advertising by competitors, evidence about its agreement with the United States Postal Service and efforts to comply with it, and evidence of customer satisfaction with its product. None of this evidence related to procedural irregularities in the instant administrative proceedings. Some of this evidence related to the Company’s claim of selective enforcement.

While selective enforcement may or may not be a defense on the merits, it is not a procedural irregularity. In addition, the Company had already submitted some evidence on this issue at the administrative level, with its exceptions to the proposed order. None of the additional evidence admitted by the circuit court related to alleged irregularities in procedure before the agency and, therefore, the court erred in admitting it.

III

Consumer Publishing sets forth a multitude of grounds for upholding the circuit court’s reversal of the administrative decision. First, the Company advances four arguments designed to show that the initial filing of the administrative proceeding was legally improper or that the administrative proceeding should have been dismissed. A. Consumer Publishing argues that “[t]he Division improperly targeted the Company for Selective Enforcement ⁷⁵¹ proceeding^]” (Company’s brief, p. 28). More specifically, the Company states: “The record conclusively establishes that 1) the company is only one of many competing companies marketing similar products, 2) the advertising disseminated by other competitors is substantially similar to that previously used by the company and 3) the Division has taken no action formal or informal, to proceed against or even investigate any other competitor in the industry.

(Id. at pp. 28-29). The Company seems to argue that these facts, if proven, would amount to a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Several companies market PPA diet pills in Maryland, and Consumer Publishing included examples of the advertising of some of these companies with its exceptions to the hearing officer’s proposed order. These advertisements showed only that some of Consumer Publishing’s competitors made advertising claims which were similar to those condemned by the Division in this proceeding.

Assuming arguendo that the Company did establish that substantially similar claims had been made by many other companies marketing PPA diet pills in Maryland and that the Division had not proceeded against those other companies, the Company’s equal protection argument is nevertheless without merit. The Supreme Court has held that the conscious exercise of some selectivity in enforcing a statute fair on its face does not in and of itself amount to a constitutional violation. Oyler v. Boles, 368 U.S. 448, 456 , 82 S.Ct. 501, 506 , 7 L.Ed.2d 446 (1962); Snowden v. Hughes, 321 U.S. 1, 8-10 , 64 S.Ct. 397 , 88 L.Ed. 497 (1944). In order to establish a violation of the Fourteenth Amendment’s Equal Protection Clause, the Company must prove that the Division’s selective enforcement “was deliberately based upon an unjustifiable standard or arbitrary classification.” In re Laurence T., 285 Md. 621, 628 , 403 A.2d 1256 (1979).

See Giant of ⁷⁵² Md. v. State’s Attorney, 267 Md. 501 , 298 A.2d 427 , appeal dismissed, 412 U.S. 915 , 93 S.Ct. 2733 , 37 L.Ed.2d 141 (1973); Drews v. State, 236 Md. 349 , 204 A.2d 64 (1964), appeal dismissed, 381 U.S. 421 , 85 S.Ct. 1576 , 14 L.Ed.2d 693 (1965). The Company has failed to meet this standard. Although the Division has conceded that Consumer Publishing was the only firm selling “PPA” diet pills which was proceeded against, the Company has not shown that the Division deliberately chose not to prosecute other firms in the industry. As the United States Court of Appeals for the Second Circuit said in Ger-Ro-Mar, Inc. v. F.T.C., 518 F.2d 33, 35 (2d Cir.1975), an enforcement agency “cannot be expected to bring simultaneous proceedings against all of those engaged in identical practices.” To require the Division to undertake an industry-wide investigation every time one violator comes to its attention would prevent the prosecution of numerous known violators.

It is surely rational for an agency to target resources against one violator and rely on the success of that action to induce voluntary compliance or ease subsequent enforcement against others. The Division represented to the circuit court that affirmance of the administrative order in this case would put other companies selling diet pills “on notice of the standard [for advertising] that has been approved ... and hopefully [they] would come into compliance.” The Division further stated that “if, unfortunately some would not voluntarily comply ... we would take action against them ... [in court] ... and attempt to seek civil penalties ____” The Company has produced no evidence that the Division has intentionally and purposefully decided to prosecute only Consumer Publishing and not to prosecute other industry violators. Furthermore, the Company has not shown that the Division’s enforcement was based on an unjustifiable standard ⁷⁵³ or arbitrary classification. 6 The Division represented that Consumer Publishing came to its attention because it ranks second in national market share among mail order companies selling PPA products and was taking out full-page advertisements in Maryland newspapers. The Company submitted no evidence at the administrative proceeding to the contrary.

Consequently, the Company has not met its burden of showing deliberate discrimination based on an unjustifiable standard or arbitrary classification. Its selective enforcement argument is without merit. B. Consumer Publishing also contends that the Division was required to proceed by rulemaking rather than by adjudication. The Company claims that the allegedly deceptive advertising practices complained of are industry-wide practices.

The Company’s position appears to be that, when attacking an industry-wide practice, the Division is making policy and should proceed by rulemaking. The administrative record does not establish that the allegedly deceptive advertising practices engaged in by the Company are industry-wide practices. Moreover, even if the Company had proven an industry-wide practice, the Division would not have been required to proceed by rule-making. Courts have generally held that administrative agencies “[are] not precluded from announcing new principles in ... adjudicative proceeding^] and that the choice between rule-making and adjudication lies in the first instance within the ⁷⁵⁴ [agency’s] discretion.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 , 94 S.Ct. 1757, 1771 , 40 L.Ed.2d 134 (1974).

Accord, e.g., NAACP v. FPC, 425 U.S. 662, 668 , 96 S.Ct. 1806 , 48 L.Ed.2d 284 (1976); SEC v. Chenery Corp., 332 U.S. 194, 202-203 , 67 S.Ct. 1575, 1580-1581 , 91 L.Ed. 1995 (1947); Cities of Anaheim, Riverside, Bunning, etc. v. FERC, 723 F.2d 656 , 659 (9th Cir.1984); Belland v. Pension Ben. Guar. Corp., 726 F.2d 839, 845 (D.C.Cir.), cert. denied, — U.S.-, 105 S.Ct. 245 , 83 L.Ed.2d 183 (1984); Florida Power and Light v. FERC, 617 F.2d 809 , 816 (D.C.Cir.1980); Mehta v. INS, 574 F.2d 701, 705 (2d Cir.1978); Chocknok v. State, Commercial Fish. Entry, 696 P.2d 669 , 676 n. 10 (Alaska 1985); Young Plumbing and Heating Co. v. Iowa, etc., 276 N.W.2d 377, 382 (Iowa 1979); West Bridgewater Police v. Labor Rel.

Com ’n., 18 Mass.App. 550 , 468 N.E.2d 659, 662 (Mass.App.Ct.1984); Bunge Corp. v. Commissioner of Revenue, 305 N.W.2d 779 (Minn.1981); Occidental Chem. v. N.Y. State Envir. Fuel, 125 Misc.2d 1046 , 480 N.Y.S.2d 838, 841 (N.Y.Sup.Ct.1984); Mollinedo v. Texas Employment Commission, 662 S.W.2d 732, 738 (Tex.App. 1983). As Justice Murphy said for the Court in SEC v. Chenery Corp., supra, 332 U.S. at 202-203 , 67 S.Ct. at 1580 -81: “The function of filling in the interstices of the Act should be performed, as much as possible, through the quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise ....

Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. ****** [T]he agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by ⁷⁵⁵ individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.” For these reasons most courts have allowed agencies broad discretion in choosing whether to develop policy by rulemaking or adjudication. A few cases, however, have taken a more restrictive view, requiring agencies to proceed by rulemaking under certain circumstances.

Ford Motor Co. v. F.T.C., 673 F.2d 1008, 1009 (9th Cir.1981), cert. denied, 459 U.S. 999 , 103 S.Ct. 358 , 74 L.Ed.2d 394 (1983); Cities of Anaheim, Riverside and Banning, etc. v. FERC, 723 F.2d 656, 659 (9th Cir.1984) (limiting, however, the Ford Motor Co. case); Metromedia, Inc. v. Dir. Div. of Taxation, 97 N.J. 313 , 478 A.2d 742, 749-755 (1984). See Morton v. Ruiz, 415 U.S. 199 , 94 S.Ct. 1055 , 39 L.Ed.2d 270 (1974); NLRB v. Majestic Weaving Co., 355 F.2d 854, 859-861 (2d Cir.1966) (dictum). The most restrictive view is expressed in Ford Motor Co. v. F.T.C., 673 F.2d at 1009 , relied on by Consumer Publishing, where the United States Court of Appeals for the Ninth Circuit stated that “an agency must proceed by rulemaking if it seeks to change the law and establish rules of widespread application.” 7 This Court has not addressed the question of when, if ever, an agency is required to proceed by rulemaking.

Nonetheless, in the instant case it was clearly appropriate ⁷⁵⁶ for the Division to proceed by adjudication, even under the restrictive view expressed in Ford Motor Co. v. F.T.C., supra. The Consumer Protection Division did not change existing law or even formulate rules of widespread application in this proceeding. The hearing officer and the Chief of the Division simply applied the statutory standards to the facts in the record. 8 We therefore hold that the Division was not required to proceed by rulemaking in this case. C. Consumer Publishing maintains that the Division lacked authority to initiate an administrative cease and desist order hearing, pursuant to § 13-403 of the Commercial Law Article, in the absence of a consumer complaint.

While conceding that the Division has authority under § 13-204>(2) to initiate its own investigation of a possibly unfair or deceptive trade practice, the Company asserts that, when there is no consumer complaint, the Division must proceed by seeking an injunction, civil penalties or criminal penalties in ⁷⁵⁷ circuit court {see §§ 13-406, 13-410 and 13-411), rather than by an administrative cease and desist order hearing. Section 13-403(a)(l) flatly provides that “the Division may hold a public hearing to determine if a violation of the title has occurred.” 9 Nothing in the statutory language re ⁷⁵⁸ quires that a consumer complaint have been filed before the Division may hold a hearing. If the Legislature intended to limit the Division’s authority as argued by the Company, it likely would have done so expressly. 10 The Company points out that §§ 13-403(b)(2) and 13-403(c)(1) refer to a “complaint.” Section 13-403(c)(l) states that the Division may file an action in court to preserve the status quo “at any time after a complaint has been filed.” Section 13-403(b)(2) states that if the Division determines that the alleged violator did not violate the Consumer Protection Act, it shall “issue an order dismissing the complaint.” First, the term “complaint” reasonably encompasses both a consumer complaint and a complaint filed by the Division itself. Second, the language referred to is not part of the grant of authority in § 13-403(a)(l) and is not otherwise set forth as a limitation.

In addition, policy considerations support an interpretation of the statute which allows the Division to hold cease and desist order hearings on its own initiative. In many instances consumers- may be unaware of protections and remedies afforded by the Consumer Protection Act. Moreover, the amount of money involved in a single transaction might be sufficiently low that consumers would not find it worthwhile to file formal complaints with the Attorney General. Finally, we note that the Consumer Protection Division has consistently interpreted the statute as allowing it to hold cease and desist order hearings in the absence of consumer complaints.

The statutes authorizing the Division to hold cease and desist order hearings were originally enacted in 1974. Ch. 609, § 4, of the Acts of 1974. In 1975 the Division promulgated regulations entitled “Rules of ⁷⁵⁹ Practice and Procedure — Cease and Desist Order Hearings.” These regulations expressly provide that the Division itself may serve as the “party proponent,” with the obligation to show probable cause to believe that a violation of the Consumer Protection laws has occurred. COMAR 02.01.02.14.

The regulations also provide that when the Division itself “acts as the party proponent, the Attorney General shall appoint a special hearing officer to conduct the proceedings who has had no prior contact or information with respect to the proceedings.” Ibid. The regulations clearly contemplate that the Division may initiate cease and desist order hearings when there is no consumer complaint. The consistent construction of a statute by the agency responsible for administering it is entitled to considerable weight. Comm’n on Human Rel. v. Mass Transit, 294 Md. 225, 233 , 449 A.2d 385 (1982); National Asphalt v. Prince Geo’s Co., 292 Md. 75, 80 , 437 A.2d 651 (1981); Balto.

Bldg & Constr. Trades v. Barnes, 290 Md. 9, 14-15 , 477 A.2d 979 (1981); Holy Cross Hosp. v. Health Services, 283 Md. 677, 685 , 393 A.2d 181 (1978). Accordingly, we hold that the Division has authority, under § 13-403 of the Commercial Law Article, to conduct a cease and desist order hearing in the absence of consumer complaints. D. The Company contends that the Division was without authority to initiate cease and desist order proceedings against it because “[s]ix weeks prior to the filing of the charges ..., the Company entered into a valid, binding and enforceable Compromise Agreement with the [United States Postal Service] covering the precise practices complained of by the Division.” (Company’s brief, pp. 20-21).

In making this argument, the Company relies entirely on language in John C. Winston Co. v. FTC, 3 F.2d 961 (3d Cir.), cert. denied, 269 U.S. 555 , 46 S.Ct. 19 , 70 L.Ed. 409 (1925), where the court stated ( 3 F.2d at 962 ): ⁷⁶⁰ “It will be enough to say that the evidence shows that the Company itself had ceased and desisted from the practices before the Commission filed the complaint, and on this evidence the order of the Commission to cease and desist from doing what the company had already ceased and desisted from doing — and what it offered to stipulate to never do again — cannot be sustained.” The Company argues that if the Federal Trade Commission may not issue cease and desist orders directed against practices which have been voluntarily discontinued, then the Division certainly may not issue such an order against Consumer Publishing when it is already legally bound to discontinue the practices complained of. In cases after John C. Winston Co. v. FTC, supra, the courts have consistently held that “at least where a discontinued deceptive trade practice could be resumed, the prior practice may be the subject of a cease and desist order.” Beneficial Corp. v. F.T.C., 542 F.2d 611, 617 (3d Cir.1976), cert. denied, 430 U.S. 983 , 97 S.Ct. 1679 , 52 L.Ed.2d 377 (1977). Accord Lee v. F.T.C., 679 F.2d 905 (D.C.Cir.1980); F.T.C. v. Gibson Products, 569 F.2d 900 (5th Cir.1978); Feil v. F.T.C., 285 F.2d 879 (9th Cir.1960). Although some cases involving Federal Trade Commission decisions have stated that there is an outer limit to the Commission’s discretion to issue orders with respect to discontinued trade practices, these cases involved practices which had been discontinued long before the Commission’s complaint was filed.

See, e.g., Rodale Press, Inc. v. F.T.C., 407 F.2d 1252 (D.C.Cir. 1968) (four years). In the instant case, the Division filed charges on May 18, 1981. At that time, the most recent advertisement had run on March 22, 1981. Nevertheless, the Company insists that the Division should not have filed charges because the compromise agreement with the United States Postal Service, entered on April 9, 1981, covered the practices complained of by the Division and legally bound the Company to discontinue such practices.

The compromise agreement, however, differs from the Division’s final order in several important re ⁷⁶¹ spects. It does not cover all of the representations prohibited in the Division’s final order. In particular, the compromise agreement does not forbid representations that the Company’s pills “will prevent hunger or end the cause of hunger or excessive consumption of food,” that use of the pills or the diet plan “will result in a significant weight loss for substantially all users,” or that users of the pills or plan have experienced “certain amounts of weight loss or inches lost ... without indicating what weight loss or inches lost the typical prospective purchaser experiences ... with the kind of supervision that typical prospective purchasers will receive.” Also, as the Company concedes, the agreement does not require that the Company’s advertising include the bold-faced disclosure “DIETING IS REQUIRED,” or disclosure of the active ingredients in the pills. Because the compromise agreement does not cover all of the practices complained of and the remedies sought by the Division, the Company’s argument that the existence of that agreement barred this proceeding is untenable. 11 IV.

The Company also argues that the Consumer Protection Division’s combination of prosecutorial and adjudicatory functions, along with four alleged procedural irregularities, “when viewed collectively” rise to the level of a violation of the Company’s federal constitutional right to due process of law. A. A leading case on whether due process requires a separation of functions in administrative proceedings is Withrow ⁷⁶² v. Larkin, 421 U.S. 35 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975). In that case, a Wisconsin board heard testimony about Dr. Larkin in an investigative hearing and then sent him a notice of “a contested hearing” to determine whether his' license to practice medicine should be suspended. The Supreme Court held that the Board was not disqualified to hold the contested hearing or to make the decision, stating ( 421 U.S. at 47 , 95 S.Ct. at 1464 ): “The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in an administrative adjudication ... must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or -prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” The Court found no support for “the bald proposition ... that agency members who participate in an investigation are disqualified from adjudicating,” and said that “[t]he incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.” Id. at 52 , 95 S.Ct. at 1467 .

More specifically the Court held (id. at 56, 95 S.Ct. at 1469 ): “It is also very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law.” See Marcello v. Bonds, 349 U.S. 302 , 75 S.Ct. 757 , 99 L.Ed.2d 1107 (1955); F.T.C. v. Cinderella Career and Finishing Schools, 404 F.2d 1308, 1315 (D.C.Cir.1968). See generally, 3 K. Davis, Administrative Law Treatise §§ 18.3, 18.8 (2d ed. 1980). ⁷⁶³ In the present case, the actions of the Consumer Protection Division of the Attorney General’s Office fall well within the range of acceptable combinations of functions set forth in Withrow v. Larkin, supra. The Division investigated Consumer Publishing’s advertising practices, filed charges based on the results of the investigation and held hearings to determine whether the Company had violated the Consumer Protection Act.

While the Attorney General clearly received the results of the investigation and approved the filing of charges, the record indicates that he did not participate in the adjudicatory process, either at the initial hearing or at the later hearing on exceptions. The hearing officer and the Chief of the Division, who did exercise adjudicatory functions, did not participate in the investigation. The combination of functions in the Attorney General’s office, in itself, is clearly not a violation of due process of law. Nevertheless, the Company relies on the following language in Withrow v. Larkin, supra, 421 U.S. at 58 , 95 S.Ct. at 1470 : “That the combination of investigative