McNeil-PPC, Inc. v. Pfizer Inc.

Pfizer Inc. (defendant) aired a commercial advertising its Listerine mouthwash. The commercial stated: “Listerine’s as effective as floss at fighting plaque and gingivitis. Clinical studies prove it.” The commercial warned that “there’s no replacement for flossing,” but that “if you don’t floss like you should, you can get its plaque-fighting benefits by rinsing.” The commercial also showed a blue stream of Listerine tracking a string of floss through teeth. To support the claim in the commercial, Pfizer conducted a consumer study in which it asked groups of consumers with mild or moderate gingivitis to use only Listerine, or only floss, for six months. After the study, the group that used Listerine had fewer symptoms of gingivitis. The authors, theorized, however, that this potentially was because many in the floss group failed to floss regularly as they were supposed to. McNeil-PPC, Inc. (plaintiff) sued Pfizer for false advertising, claiming that the commercial falsely implied that Listerine was a replacement for floss. McNeil-PPC conducted a consumer survey demonstrating that approximately 30 percent of consumers regarded the commercial as stating “you can replace floss with Listerine.” Other evidence indicated that floss, unlike Listerine, helped fight periodontitis and tooth decay, and helped remove pieces of food from between the teeth, which was important in curbing plaque growth. McNeil-PPC moved for a preliminary injunction.