Thursday, August 20, 2009

Sunscreen Manufacturer Denied Injunction Against Comparative Ad

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

The federal district court in Wilmington, Delaware denied a sunscreen manufacturer’s request for a preliminary injunction, filed as part of a Delaware Deceptive Trade Practices Act, against a competing manufacturer that ran a print advertisement comparing the “sport” sunscreens produced by the two companies.

Comparative Illustration, Bar Graph

The competing manufacturer provided retail stores with a display case that featured an illustration comparing the effects of a layer of the two sunscreen products. According to the manufacturer, the advertisement falsely represented that its sunscreen did not protect consumers from UVA rays because it did not contain the same chemicals as the competing product.

The print ad also contained a bar graph that directly compared the two products, which the manufacturer argued was inaccurate, not to scale, and employed an irrelevant analysis. Therefore, the manufacturer sought a preliminary injunction against the competitor to remove the print advertisement from the retailers.

Literal Falsity v. Interpretation

Because the manufacturer failed to demonstrate the requisite likelihood of success to justify the extraordinary relief of an injunction, the court denied the request. There was nothing literally false about the statements made in the sunscreen advertisement, according to the court, because it was open to interpretation.

While the illustration could be seen as stating that the manufacturer’s sunscreen did not protect against UVA rays, it could also be interpreted as stating that not using sunscreen did not protect against UVA rays.

Clear and Unambiguous Message

The graph at issue did not impart a clear or unambiguous message that could be the basis for a preliminary injunction, according to the court. Each manufacturer presented evidence concerning the data contained in the bar graph. Because the matter was better suited to be fleshed out during the course of the litigation, the court denied the motion for the preliminary injunction.

The August 5 decision in Schering-Plough Healthcare Products, Inc. v. Neutrogena Corp., will appear at CCH State Unfair Trade Practices Law ¶31,872

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