Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. SmithKline Beecham Corp.

Johnson & Johnson * Merck Consumer Pharmaceuticals Co. (J&J) (plaintiff) manufactured Mylanta, an antacid that contained aluminum and did not contain calcium. SmithKline Beecham Corp. (SmithKline) (defendant) manufactured a competing product, Tums, that contained calcium and did not contain aluminum. SmithKline made a television commercial comparing the ingredients of the antacids. The commercial stated that Mylanta contained aluminum, and emphasized that Tums contained calcium. J&J brought suit under the Lanham Act in the United States District Court for the Southern District of New York (District Court), alleging that the commercials portrayed a false or misleading message. Specifically, J&J alleged that the commercial played off of a common public misperception that digestion of aluminum caused Alzheimer’s disease. At trial, J&J introduced a consumer survey of 300 antacid users who were shown the commercial. Two of the questions asked were “Aside from trying to get you to buy the product, what are the main ideas the commercial communicates to you?” and “What other ideas does the commercial communicate to you?” In response to these questions 18 people out of 300 stated that Tums’s competitors’ products contained ingredients that were bad for you. Six of those 18 responded specifically that aluminum was not good for you. Three others responded negatively about aluminum, generally. The survey also asked more leading questions about aluminum that the District Court found to be unpersuasive. The District Court found in favor of SmithKline and dismissed the complaint. J&J appealed.