McNeil-PPC, Inc. v. Pfizer Inc.

United States District Court for the Southern District of New York, Jan. 6, 2005
Summary by Jacob Short

Rinsing does not equal flossing. Advertising to the contrary leaves you subject to a claim of false advertising under the Lanham Act Section 43(a) and unfair competition under state law. Pfizer found this out the hard way after beginning a new add campaign for Listerine.

PPC, a wholly owned subsidiary of Johnson & Johnson ("J & J"), manufactures and markets consumer oral health products. PPC is the market leader in the sales of interdental cleaning products, including dental floss. According to the label on J&J's Reach dental floss: Dentists recommend regular flossing. Flossing has been clinically proven to remove plaque between teeth to help prevent gum disease.

Pfizer manufactures and markets consumer and pharmaceutical products, including Listerine, an essential oil-containing antimicrobial mouth rinse. According to its label, Listerine: Kills germs that cause Bad Breath, Plaque & the gum disease Gingivitis.

The ADA requires that all labeling and advertising bearing the ADA seal of acceptance be submitted to the ADA for review and approval prior to use. Listerine carries the ADA seal. In March 2002, Pfizer asked the ADA Council on Scientific Affairs to approve advertising to professionals claiming that Listerine is "as effective as flossing" and "as essential as flossing." Pfizer acknowledged to the ADA that "we recognize that any comparison vs. flossing may send an unintended message to dental professionals that Listerine can replace flossing," and Pfizer assured the ADA that its advertising was "constructed" to "ensure that this does not happen."

The ADA approved Pfizer's professional advertisements. The ADA also approved the claim "[n]ew clinical studies prove that the antimicrobial action of Listerine is as effective as flossing." The claims were approved for use only with professionals "because of the potential to mislead consumers that they no longer need to floss."

In January 2004, Pfizer sought approval from the ADA to expand its "as effective as flossing" advertising campaign to consumers. Pfizer emphasized in its submission that it had spent the prior eighteen months "educating dental professionals. Again Pfizer sought to assure the ADA that we are taking appropriate, responsible and ethical measures to convey an unambiguous, yet creative and provocative, message to consumers that Listerine is not a replacement for flossing and that it is an adjunct to their usual mechanical oral care routine, which should include flossing daily.

The new ads under the name The Big Bang led to consumer confusion. According to surveys many consumers thought that rinsing with Listerine provided the same benefits as floss. PPC then filed this action seeking a preliminary injunction.

A party seeking a preliminary injunction must show that: (1) it is likely to suffer irreparable injury if relief is denied; and (2) there is either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor. Here PPC is likely to suffer irreparable injury because: (1) the advertising is literally false; (2) PPC can prove a logical causal connection between the alleged false advertising and its own sales position; (3) it is likely that the ads already have adversely affected PPC's sales.

To prevail on a Lanham Act false advertising claim, a plaintiff must demonstrate the falsity of the challenged advertisement, by proving that it is either (1) literally false, as a factual matter; or (2) implicitly false, factually true, but still likely to mislead or confuse consumers. In this case both the literally and implicitly false elements of a false advertising claim are satisfied. The claims in the ad were false and consumer surveys showed confusion.

In conclusion, the judge held: (1) floss manufacturer established that it would likely suffer irreparable harm absent preliminary injunction; (2) floss manufacturer established likelihood of success on the merits of literal falsity claim; and (3) floss manufacturer established likelihood of success on the merits of implied falsity claim.