McNeilab, Inc. v. American Home Products Corp.
| Decision Date | 21 November 1980 |
| Docket Number | No. 79 Civ. 3973.,79 Civ. 3973. |
| Citation | 501 F. Supp. 517 |
| Parties | McNEILAB, INC., Plaintiff, v. AMERICAN HOME PRODUCTS CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Patterson, Belknap, Webb & Tyler, New York City, Arnold & Porter, Washington, D. C., Townley & Updike, New York City, for plaintiff; David F. Dobbins, Karl E. Seib, Jr., Gene M. Bauer, New York City, Peter K. Bleakley, William W. Vodra, Maxwell J. Mehlman, John M. Quinn, Vicki J. Divoll, Hamish R. Sandison, Washington, D. C., John Paul Reiner, Mark D. Geraghty, New York City, of counsel.
Charles F. Hagan, William P. Woods, New York City, for defendant.
In particular, McNeil contends that various advertisements for MSA "tend falsely to describe or represent" MSA because 1) consumers perceive them as making a claim that MSA is a "stronger" analgesic than Extra Strength Tylenol, which it is not, 2) the assertion that MSA "contains the maximum strength allowed without prescription" is false, and 3) the use of the phrase "the pain reliever doctors recommend most" is misleading.
The hearing on McNeil's motion for a preliminary injunction and the trial on the merits were consolidated pursuant to Rule 65(a)(2), Fed.R.Civ.P. At the time, only the first of McNeil's three claims was before the court, but shortly after the conclusion of the trial McNeil filed a written motion to amend the complaint to conform to the evidence, which, it contends, establishes its right to relief on its third claim, see Fed.R. Civ.P. 15(b), and to add its second claim. Concurrently, McNeil sought summary judgment on its second claim which was not addressed at trial. The court has jurisdiction over McNeil's statutory claims by virtue of 15 U.S.C. § 1121, and has pendant jurisdiction over McNeil's parallel common law claims. This opinion constitutes the court's findings of fact and conclusions of law, as well as its disposition of McNeil's motion to amend the complaint and for summary judgment.
The two most popular non-prescription pain relieving ingredients are aspirin and acetaminophen. AHP does not here contest McNeil's assertion that the two ingredients are equally potent pain relievers. See American Home Products Corp. v. Johnson & Johnson, 436 F.Supp. 785 (S.D.N.Y.1977), aff'd, 577 F.2d 160 (2d Cir. 1978). The standard dose for both aspirin and acetaminophen is and has long been two tablets containing 325 milligrams ("mg") of active ingredient each, but products containing more than 325 mg per tablet are available without prescription. Products containing 325 mg of pain relieving ingredient are considered "regular strength" products; those containing more are termed "extra strength" or "added strength" products.
Of the various brands of over-the-counter ("OTC") internal analgesics available, the best selling-with a 16% share of dollar sales in the period ending June 30, 1979-is McNeil's Extra Strength Tylenol, which contains 500 mg acetaminophen per tablet or capsule. AHP's Anacin, which contains 400 mg of aspirin per tablet, is the second best seller, with 11% of dollar sales in the same period. The other major sellers, regular Tylenol (325 mg acetaminophen), Bayer (325 mg aspirin), Bufferin (325 mg aspirin) and Excedrin (421 mg combined aspirin, acetaminophen, and salicymide), accounted for between 7% and 9% of dollar sales each. Finally, AHP markets a 500 milligram acetaminophen product, Anacin-3, which captured less than one percent of dollar sales in that period.
In April, 1979, AHP introduced its new product, Maximum Strength Anacin, which contains 500 mg of aspirin. Shortly thereafter, AHP began a nationwide advertising campaign to promote MSA, and between late June and late July AHP ran two advertisements on national television that triggered this lawsuit.
The first of these, known as "Laser," had the following text:
The second, known as "Report," stated:
AHP subsequently revised the "Report" commercial, in part in response to this litigation, by substituting the phrase "added strength" for the phrase "extra strength." (Defendant's Exhibit N.)
A third advertisement, known as "Circles," was introduced after McNeil instituted this action. It's text was:
The visual component of each of these advertisements included a graphic representation of the comparative amount of pain reliever in "regular strength products," "extra strength products," and Maximum Strength Anacin. In "Laser" and "Report," this took the form of a bar graph displayed during the third paragraph of the texts quoted above, made up of three bars of increasing height, labeled "regular strength," "extra strength" (or "added strength" in the revised version of "Report"), and Maximum Strength Anacin.2 In "Circles," this took the form of three circles of increasing diameter, labeled "regular strength," "added strength," and Maximum Strength Anacin, again displayed during the third paragraph of the text as quoted above.3
McNeil prays for an order enjoining AHP from publishing or using any advertisement calculated to deceive the purchasing public into believing that MSA contains more pain relieving ingredient than any OTC analgesic product that contains 500 mg. of acetaminophen (Proposed Amended Complaint ¶ B), or that MSA, as currently labelled, contains the "maximum amount allowed without prescription" (Proposed Amended Complaint ¶ C). Finally, McNeil seeks an injunction barring AHP from representing in comparative advertising that MSA "goes beyond extra strength, added strength, or adult strength pain relievers" in the amount of analgesic ingredient it contains, without explicitly disclosing that its active ingredient is aspirin (Proposed Amended Complaint ¶ D).
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