TAGAMET HB has a faster onset of action than PEPCID AC is false.
Consequently and in accordance my with Order of October 13, 1995, SmithKline Beecham is enjoined, pending final determination of this action, from disseminating on behalf of TAGAMET HB all advertising or promotional materials that contain the claim that TAGAMET HB has a faster onset of action than PEPCID AC.
3. The TUMS Commercial.
J&J-Merck further asks that I enjoin a commercial for TUMS ULTRA antacid disseminated by SmithKline Beecham. The commercial claims that PEPCID AC "took over an hour to start working" while TUMS "starts working within seconds." At various times throughout the commercial a small typed message appears at the bottom stating that these claims are "based on pH data of stomach acidity."
J&J-Merck claims that this advertisement is false because PEPCID AC does not take over an hour to start working and TUMS does not start working in seconds. As I stated in the section above, J&J-Merck demonstrated to my satisfaction that PEPCID AC begins to work within half an hour, or within 15 minutes. See section 2 above. There is no need to repeat my analysis here and I therefore find that SmithKline Beecham's claim that PEPCID AC "took over an hour to start working" as contained in the TUMS commercial is false.
In terms of SmithKline Beecham's claim that TUMS starts working within seconds, I find that claim is also false. SmithKline Beecham provided me with clinical pH studies showing that when TUMS is added to gastric acid, it has an almost immediate effect on the pH level. SmithKline Beecham, Ex. 66 at 3899. Professor Freston criticized SmithKline Beecham's studies, claiming that the use of test tube experiments does not replicate the actual conditions in the human stomach. Freston, Tr. 21, 79-80. Professor Freston further testified that no antacid can begin to work to relieve heartburn within seconds. Freston, Tr. 52-53.
SmithKline Beecham provided me with two additional pH probe studies which compare the gastric effects of TUMS ULTRA with PEPCID AC. In a draft of one report, the researchers concluded that TUMS begins to raise stomach pH within 42 minutes, while in a revised version, researchers concluded that the median onset of action time for TUMS ULTRA occurred within 1.3 minutes. J&J-Merck, Ex. 82C2; SmithKline Beecham, Ex. 95. Based on this data, I conclude that although TUMS ULTRA may begin to work almost immediately, it clearly does not begin to work within seconds. For that reason, I am enjoining SmithKline Beecham from further disseminating the claim that PEPCID AC "took over an hour to start working" while TUMS "starts working within seconds" without further study.
Consequently and in accordance with my Order of October 13, 1995, SmithKline Beecham is further enjoined, pending final determination of this action, from representing in any advertisement or promotional communication on behalf of TUMS that TUMS starts working within seconds, but this injunction does not preclude SmithKline Beecham from advertising that, based on head-to-head tests of stomach pH, TUMS starts to work fast and faster than PEPCID AC and has a faster onset of action than PEPCID AC.
Based on the evidence adduced at the evidentiary hearing in this matter, each party's motion is granted in part and denied in part.
New York, New York
November 9, 1995
Harold Baer, Jr.
United States District Court