American Home Products Corp. v. Johnson & Johnson, McNeilab, Inc.

Citation: 671 F. Supp. 316Docket: 87 Civ. 6970 (WCC)

Court: District Court, S.D. New York; November 4, 1987; Federal District Court

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In the case of American Home Products Corporation v. Johnson, Johnson, McNeilab, Inc., the United States District Court for the Southern District of New York addressed a dispute over advertising claims between American Home Products (AHP), maker of ADVIL, and McNeilab, a subsidiary of Johnson & Johnson, known for EXTRA-STRENGTH TYLENOL. AHP sought injunctive relief under Section 43(a) of the Lanham Trademark Act, alleging that McNeil's advertisements falsely claimed that EXTRA-STRENGTH TYLENOL was superior for headache and minor pain relief compared to other over-the-counter (OTC) analgesics, including ADVIL.

McNeil's motion to dismiss was based on two arguments: first, that AHP was estopped from challenging McNeil's advertising due to AHP's own similar advertising claims; and second, that a previous ruling in an earlier case determined McNeil's claims were factually correct, invoking the principle of res judicata. The court denied McNeil's motion, reiterating the ongoing legal battle over advertising claims between the two companies, which has involved multiple prior actions.

In a previous significant case, referred to as Tylenol I, the court established key findings regarding the relative efficacy of the two products. It concluded that while ADVIL is more effective for severe pain, there is no significant difference in effectiveness for mild to moderate pain between the two. Consequently, the court ordered that McNeil could not claim that acetaminophen is as effective as ibuprofen for severe pain, indicating a nuanced view on advertising claims in the OTC analgesic market.

The injunction in question does not prevent the defendants from advertising the effectiveness of Extra-Strength Tylenol for mild to moderate pain or headaches. Both parties indicated they would not appeal this order, which remains in effect despite unresolved issues, including McNeil's counterclaim regarding misleading advertisements for ANACIN and the determination of damages for prior claims. Following the injunction, McNeil initiated a new advertising campaign claiming the superiority of Extra-Strength Tylenol, which prompted AHP's Vice President to express concerns about specific advertisements suggesting this superiority over ibuprofen. In response, McNeil modified its advertisements to clarify the claims made. AHP subsequently filed a lawsuit alleging that both the original and revised advertisements mislead consumers into believing Extra-Strength Tylenol is superior. AHP also challenged a promotional brochure used by McNeil that claimed Extra-Strength Tylenol was the most effective OTC analgesic for headache pain. McNeil sought to dismiss the lawsuit based on res judicata or, alternatively, to transfer the case to a familiar court. The court granted the transfer but deferred the dismissal decision, acknowledging its better understanding of prior rulings related to the case.

In late September 1987, McNeil informed the Court of its pending motion to dismiss and its intention to submit a supplemental brief, which it filed on September 29, 1987. This prompted AHP to file a supplemental opposing brief, leading to a reply brief from McNeil. McNeil argued that AHP is estopped from challenging its claims of equal efficacy for EXTRA-STRENGTH TYLENOL compared to ADVIL, citing AHP's own advertising language and the doctrine of res judicata based on a prior case (Tylenol I) that approved claims of equal effectiveness. However, AHP's complaint asserts that McNeil's advertising suggests superiority rather than mere equality. AHP's arguments focus on the overall message and visual elements of the advertisements, rather than just the wording.

The Court emphasizes that the merit of AHP's allegations should be assessed based on consumer perception rather than the literal truth of the statements. Citing Judge Lasker’s opinion in American Brands, Inc. v. R.J. Reynolds Tobacco Co., the Court indicates that the focus is on whether a statement, although literally true, can mislead consumers. The public's reaction to the advertisement is critical in determining potential deception. While the Court can analyze the language used, it must ultimately consider how the advertisement is perceived by the target audience. The Court notes that in previous cases, insufficient evidence was presented to establish consumer reactions to the advertisements, and it concludes that this case does not meet the threshold for dismissal based on unrealistic claims about consumer interpretation.

The original television commercial claimed that "not even twice the recommended dose of ibuprofen is more effective than Extra-Strength Tylenol," which could mislead viewers into believing that Extra-Strength Tylenol is as effective as Advil for all pain types, not just headaches. The comparison may have suggested that Extra-Strength Tylenol is at least twice as effective as Advil. The modified commercial, while improved, raises additional concerns. The claim that Extra-Strength Tylenol is "unbeatable for headache relief" extends beyond mere comparison, implying it is superior to all pain relief options, which the court found problematic. 

In a print advertisement, the question "WHICH PAIN RELIEVER IS STRONGEST?" may have led readers to incorrectly conclude that Extra-Strength Tylenol is the most potent pain reliever overall, reinforced by the advertisement's layout. The court previously ruled that the assertion of Extra-Strength Tylenol's potency compared to Advil is false, and claiming it is "the strongest" OTC pain reliever is also misleading. While it is accurate to state that Extra-Strength Tylenol is equally effective as Advil for mild to moderate pain, this is distinct from McNeil's claims. The new advertisement question "WHICH PAIN RELIEVER HAS UNBEATABLE STRENGTH FOR HEADACHES" still implies potency rather than effectiveness, compounding the misleading nature of the claims. Additionally, the cover page's question about the "most effective OTC analgesic for headache pain" suggests that Extra-Strength Tylenol is superior to all others, including Advil, which is misleading.

The artwork in the brochure significantly contributed to an impression of superiority regarding EXTRA-STRENGTH TYLENOL. A graph spanning pages 2, 3, and 4 featured three colored curves representing the effectiveness of three analgesics, with a red curve positioned above the others, likely suggesting that it corresponds to TYLENOL’s effectiveness, implying it outperforms ADVIL and aspirin at all pain intensity levels. The only other red text was the word "TYLENOL" prominently displayed at the top of the same pages. Although the promotional materials have been discontinued, AHP can seek an injunction against their reissuance and a ruling on the acceptability of such claims. The Court refrains from expressing any opinion on the merits of AHP's claims regarding the advertisements' implications about TYLENOL’s effectiveness compared to ADVIL but affirms AHP's right to present its case. McNeil's motion to dismiss the complaint is denied.