Sterling Drug v. Federal Trade Commission

Sterling Drug, Inc. (Sterling) (defendant) manufactured nonprescription pain relievers, including Bayer Aspirin, Cope, and Midol. Sterling ran advertisements claiming that Bayer Aspirin and Cope were therapeutically superior to pain relievers manufactured by its competitors. The advertisements contained pictures of medical reports, shelves lined with large books, and narration mentioning important studies that Sterling had conducted on pain relief. Sterling also ran advertisements for Midol claiming that Midol contained an exclusive formula. The Midol advertisement did not mention that Midol contained aspirin to relieve pain. The Federal Trade Commission (FTC) (plaintiff) charged Sterling with violations of §§ 5 and 12 of the FTC Act for deceptively advertising its pain relievers. With regard to the Bayer Aspirin and Cope advertisements, the FTC argued that Sterling claimed that its products were therapeutically superior to competing products and suggested that the superiority was scientifically established. With regard to the Midol advertisement, the FTC argued that Sterling failed to disclose the product’s aspirin content. An administrative-law judge found that Sterling violated the FTC Act and issued a cease-and-desist order requiring Sterling to substantiate its claims of therapeutic superiority with two clinical studies or tests accepted by the scientific community. The FTC affirmed the administrative-law judge’s decision. Sterling appealed.