It would seem, then, that the plaintiff would have the Court hold that, what seems to be a fair advertising advantage, that is, differences in claims in the labeling based on the status of the products before the FDA, is instead an unfair advertising practice. This the Court is not prepared to do, especially under the standards that the plaintiff must meet to prevail on preliminary injunction. To do otherwise would have the Court equalize the products in the minds of the consumer in the claims they can make on their labels regarding prevention of heartburn, and thus eliminate the need for plaintiff to obtain FDA approval for labeling regarding heartburn prevention and to erase defendant's competitive advertising edge.
The advertisement on its face directs the consumers to read the labels and compare them. If they do they would come to the same conclusion that Faith Daniels does in the ad, and as plaintiff's expert Dr. Ross finally acknowledged he would as well. (Tr. at 33-41, 7/18/96.)
Plaintiff must therefore show that the claim, although literally true, tends to mislead or confuse the consumers. Johnson, 960 F.2d at 297. This question is not to be determined by the Court, instead the Court asks, "What does the person to whom the advertisement is addressed find to be the message?" Id. (Quoting American Home Prods. Corp. v. Johnson & Johnson, 577 F.2d 160, 166 (2d Cir. 1978).)
This claim is usually supported by consumer surveys. First, the Court determines, by evaluating the consumer surveys, what message was conveyed to the public and that a substantial number of these consumers hold the false belief, Johnson, 960 F.2d at 298. "Once the meaning of the target audience has been determined, the court, as the finder of fact, must then judge whether the evidence establishes that they were likely to be misled." Id. (Quoting Nikkal Indus. v. Salton, Inc., 735 F. Supp. 1227, 1235 (S.D.N.Y. 1990).) In determining this, the court may consider other factors such as commercial context, the defendant's prior advertising history, and the sophistication of the audience.
The consumer survey that Dr. Ross developed and supervised sought to discern consumer understanding of the challenged advertisement after viewing it. Dr. Ross admitted that he would classify a respondent as "confused," if a respondent, either from viewing the test commercial or from reading Zantac 75's label, stated that Zantac 75 did not claim to prevent heartburn, or that, by omission, it could not prevent heartburn. Dr. Ross justified this classification because he himself was aware of one pooled, statistically significant study that showed that Zantac 75 could prevent heartburn. Using this highly restricted information, he concluded that consumers who read labels as the challenged ad tells them to do, were "confused" if they believed that Zantac 75 could not prevent heartburn or could not claim to prevent heartburn. (Tr. at 39; 7/18/96.) However, the Court finds that to use the pooled study as the basis for finding that a direction in an advertisement to read plaintiff's product's label is confusing to the consumer is not supportable, either on the facts in this case, or on the law. Hence, the Court finds that the premise of the consumer survey is faulty and does not support a finding that consumers were misled. Not only is the defendant's advertisement literally true; it is actually true.
Furthermore, even when looking at the study, Dr. Ross found that 77 people were misled because they took away the misimpression that Zantac 75 cannot prevent heartburn. However, if a consumer does as the commercial directs, that is, reads the labels, the consumer who believes that Zantac 75 could not prevent heartburn would not be incorrect.
As the Court has now found that the plaintiff has shown neither a likelihood of success on the merits nor sufficiently serious questions going to the merits to make them fair ground for litigation, and hence no irreparable harm, there is no reason to reach the balance of hardship factor.
I will point out, despite the ruling here, that the Court is troubled by the use by the defendant of the ruling by Judge Baer, in matters before that court where the question of onset was pivotal to the decisions reached by that court. I, by my ruling here, have found that onset is not a factor raised by the ad, and therefore has no bearing on my opinion here. However, I would advise the defendants that they have very cleverly, and therefore successfully crafted an ad that avoids the problems set forth by Judge Baer's opinion, in my opinion, and that they should be very careful not to go any further in terms of using that opinion inappropriately or offensively, and indeed if they do intend to do so, that they expect to completely and fully abide by it themselves whether or not they are required to. Don't shake it if you're not going to use it.
Conclusion: Plaintiff, having failed to meet its burden, its preliminarily injunction is denied.
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