Johnson & Johnson * Merck Consumer Pharmaceuticals Company v. Smithkline Beecham Corporatio

960 F.2d 294 (1992)

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Nature of the Case

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Facts

P manufactures and markets MYLANTA. MYLANTA contains aluminum hydroxide and magnesium hydroxide as its acid neutralizing agents. D produces the antacid TUMS. TUMS relies upon calcium carbonate, rather than aluminum or magnesium salts, in treating indigestion and related ailments. D made a commercial comparing its product to others that contained aluminum or magnesium salts. The products they trashed were ROLAIDS, MAALOX, and MYLANTA. The ingredients of each of these antacids were visually superimposed on the screen and listed by the announcer. Immediately following this remedial menu, the ad continues with a close-up image of a roll of TUMS. The voice-over states that TUMS is 'aluminum-free,' and that 'only TUMS helps wipe out heartburn and gives you calcium you need every day.' The commercial ends with a visual and verbal statement of the advertisement's slogan: 'Calcium-rich, aluminum-free TUMS.' The makers of ROLAIDS, MAALOX, and MYLANTA filed formal protests with each of the three major television networks, objecting to the Ingredients broadcast on the grounds that it was false and misleading in that they implied that there was something unhealthy about their ingredients. D released a second version of the TUMS commercial, entitled 'Ingredients-Revised.' It emphasized the fact that TUMS contains calcium, ROLAIDS, MAALOX, and MYLANTA did not, and that calcium is good for you. P sued in the district court to enjoin Ds from continuing to broadcast Ingredients-Revised and its shortened version, on the grounds that the commercials violated § 43(a) of the Lanham Act. P claimed D falsely represented that: 1) occasional ingestion of TUMS, in the manner directed for antacid relief, results in nutritional benefit to the consumer; and 2) the magnesium and aluminum contained in MYLANTA are unsafe for human consumption. After a five-day bench trial, the judge concluded that P had 'not shown that the message that occasional Tums users will benefit from calcium is false or misleading. She also found 'that the challenged commercials do not communicate the message that aluminum or magnesium are harmful or unsafe.' P appealed. P contends that, even though the content of the challenged commercials is literally true, Ingredients-Revised preys upon a publicly held misperception that the ingestion of aluminum causes Alzheimer's disease. D does this by repeatedly juxtaposing the absence of aluminum in TUMS with its presence in MYLANTA.