Business Law n the UL Goldschmilll manufacturer and s vers Airlines, Inc the the
ID: 462123 • Letter: B
Question
Business Lawn the UL Goldschmilll manufacturer and s vers Airlines, Inc the the Vicks, Inc. is cough ges- 4. Formula 44 Pediatric nhal children. ads for that r the medicine for contains active ingredients /or claims that the instantly. However, enable it begin working inactive ingredients of 44 is considered to have only "inactive" according to on "active" and try ingredients. A competitor has alleged that Vicks is "mis. on- branding" its products. Can the FDA take any action? What steps could it take? Will the FDA be required to make an interpretation of the "active"/"inactive" reg lation? [Sandoz Pharmaceuticals v Richardson-Vicks, Inc., te 902 F2d 222 (3rd Cir. 1990)]
Explanation / Answer
Any person who shall ... use in connection with any goods or services ... any false description or representation, including words or other symbols tending falsely to describe or represent the same ... shall be liable in a civil action by any person ... who believes that he is or is likely to be damaged by the use of such false description or representation.
Acc to 15 U.S.C. 1125(a). To prevail on a claim of unfair competition under Section 43(a), a plaintiff must first prove by a preponderance of the evidence that the claims it challenges are false or misleading.
When the challenged claims are literally false, the court may grant relief without consideration of the impression that the advertising may have created on the buying public. ). A determination of whether or not the claims are literally false entails an analysis of the message conveyed by the advertising in context.
If the challenged claim is literally true, to prove that it is therefore deceptive or misleading (i.e., consumers would find that the message conveyed left a false impression about the product), plaintiff must prove the following: 1) that the statement is material because it is likely to influence purchasing decisions and 2) that the misrepresentation has a tendency to deceive the consumer. With these principles as a guide, I turn to an analysis of the challenged claims.
Vicks' claim in its advertisements and materials that Pediatric 44 "starts to work the instant they [children] swallow shielding irritated cough receptors on contact" (D.I. 16B, Exhibit 23) depends for its truthfulness on Vicks' assertions regarding the effects of Pediatric 44's demulcents and the thickness of its inert syrup.
The evidence adduced by both parties relevant to the assertions by Vicks consists of conflicting expert opinion and the four clinical tests conducted by Vicks, the results and methodology of which, while attacked by Sandoz, indicate that the demulcent in Pediatric 44 could begin to work upon swallowing. The Court is not persuaded that Vicks' claim is literally false, *601 particularly since most parents know that most any fluid will begin to soothe a throat "the instant they [children] swallow". The inquiry thus focuses upon whether or not the advertisement is misleading and leaves consumers with a false impression about the Vicks product.
The record is devoid of any evidence from which I could find that consumers would find that the advertising will leave a false impression about the product. Sandoz has produced no market research or consumer studies indicating that consumers will be misled or left with a false impression from the advertisement. See Coca-Cola Co. v. Tropicana Products Inc., 690 F.2d 312, 317 (2d Cir.1982) (when challenged advertisement is "implicitly ... false its tendency to violate the Lanham Act by misleading ... should be tested by public reaction").
Further, it is the Court's view that the advertising statement would probably not influence the purchasing decision. Parents buy what their pediatrician or their own experience tells them is most effective. As noted, Vicks' claim "starts to work when swallowed" could indicate precisely what it claims, that the ingredients in Pediatric 44 as a whole begin acting to relieve a cough as soon as the child takes it. While the advertisement may imply that the medicine works more quickly than it does, the record is devoid of any proof of exactly what the consumers believe. The Court is not persuaded that the evidence here demonstrates that a consumer would take the claim "starts to work the instant they [children] swallow" as a statement that the cough stops right away, even though a consumer may believe from the claim that something happens to lessen the symptoms when the syrup is swallowed. In Upjohn v. Riahom, the court found that Riahom's claims that the RIVIXIL was a cosmetic and had been clinically tested had a tendency to deceive the consumer. 641 F. Supp. at 1223. However, in that case, Riahom had never even tested the material and thus had no basis to claim that it was a cosmetic or that it was safe. Id. In the instant case, Vicks has tested the product in support of its claims so they are not deceptive on that basis. While the claim may deceive the consumer about what actually works in the product, this has not been established by Sandoz.
With regard to the bar graph of Study 87-55 in the "information sheets", the Court concludes it is not literally false. There is no evidence that the targeted audience, pediatricians, are misled or deceived by the graph. For these reasons, the Court concludes that Sandoz has failed to establish the requisite probability of success on the merits of its Lanham Act claim.
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