Friday, June 03, 2011

Infant Formula Maker’s Ads About Store Brands Barred

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Infant formula manufacturer Mead Johnson was properly enjoined from publishing any advertisement containing a false representation about store brand infant formula produced by PBM Products, the U.S. Court of Appeals in Richmond has ruled.

In addition to affirming the permanent injunction (CCH Advertising Law Guide ¶63,672), the court upheld the trial court’s rejection of Mead Johnson’s defamation and Lanham Act counterclaims (CCH Advertising Law Guide ¶63,764).

The injunction expressly barred Mead Johnson from making the following claims:

“It may be tempting to try a less expensive store brand, but only Enfamil LIPIL is clinically proven to improve brain and eye development,” and

“There are plenty of other ways to save on baby expenses without cutting back on nutrition.”

Irreparable Harm, Inadequate Remedy at Law

PBM suffered irreparable harm, the court held. Mead Johnson’s advertising misled customers. PBM’s reputation was, and potentially continued to be, damaged. The entire goal of Mead's 2008 mailer was to deter mothers from considering a switch to store brand formula.

The remedies at law were inadequate, the court determined. While the jury awarded PBM $13.5 million in damages, the damages judgment compensated PBM for harm that flowed directly from the mailer. The injunction prevented Mead Johnson from infecting the marketplace with the same or similar claims in different advertisements in the future.

Balance of Hardships, Public Interest

The balance of hardships favored PBM, and the public interest heavily favored injunctive relief, the court said.

The general public interest in preventing false and misleading advertising was perhaps heightened when, as in this case, the misleading information pertained to issues of public health and infant wellbeing. The injunction was not overbroad because it only reached the specific claims that the district court found to be literally false, according to the court.

PBM’s “Compare to” Ad Claims

Mead Johnson's Lanham Act false advertising counterclaims were properly rejected because they were untimely under the analogous two-year Virginia statute of limitation and the doctrine of laches, and because Mead Johnson failed to establish that PBM's “Compare to” ads were impliedly false.


Because false advertising was substantially synonymous with lying, in the court’s view, Mead Johnson could not establish defamation under Virginia law based on a press release issued by the CEO of PBM Products declaring that “Mead Johnson Lies About Baby Formula . . . Again.” Mead Johnson was held to have engaged in false advertising in this case, and it did not dispute that it had distributed false statements about PBM's formulas on prior occasions, the court observed.

The decision is PBM Products, LLC v. Mead Johnson & Co.,CCH Advertising Law Guide ¶64,264.

Further information about CCH Advertising Law Guide appears here.

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