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McNeilab, Inc. v. Am. Home Prods. Corp.

United States Court of Appeals for the Second Circuit

May 9, 1988, Argued ; May 26, 1988, Decided

No. 88-7010

Opinion

 [***2007]  [*35]   KAUFMAN, Circuit Judge:

The ongoing competition between McNeilab, Inc. (McNeil), a wholly owned subsidiary of Johnson & Johnson, Inc., and American Home Products Corporation (AHP), rival [**2]  pain reliever manufacturers, has brought anything but relief to the federal courts. Instead, repeated and protracted litigation  [***2008]  has created a substantial headache. The competitive battlefield has shifted from the shelves of supermarkets and drugstores to the courtroom. Once again, we are called upon to restrain deceptive advertising practices and to protect the public from inaccurate safety claims.

Plaintiff-appellee McNeil manufactures Tylenol, the leading aspirin-free over-the-counter (OTC) pain reliever. The active ingredient in Tylenol is acetaminophen. Defendant-appellant American Home Products manufactures Advil, a competing product. The active ingredient in Advil is ibuprofen. Tylenol and Advil compete directly, along with aspirin, in the lucrative OTC internal analgesic market. To distinguish their products in consumers' minds, each manufacturer stresses the diverse qualities of its drug's ingredients, particularly with respect to safety and effectiveness.

Ibuprofen has been available in the United States as a prescription drug since 1974. The Food and Drug Administration approved it for over-the-counter distribution in 1984. Like aspirin, ibuprofen is a non-steroidal anti-inflammatory [**3]  drug that inhibits the body's production of prostaglandins. Prostaglandins sensitize nerve endings to pain and inflamed joints; thus these drugs prevent pain and swelling. Because prostaglandins also protect the stomach lining, however, impeding their production may lead to stomach irritation or ulcers. Ibuprofen is less likely to cause these side effects than aspirin. Acetaminophen, on the other hand, does not affect prostaglandin production; it reduces suffering by raising the pain threshold. Consequently, acetaminophen is relatively free of adverse gastrointestinal side effects.

AHP introduced Advil in 1984. McNeil, perceiving a threat to its market position, responded with heavy promotion of Tylenol. It distributed innumerable free samples  [*36]  to physicians and engaged in widespread print and television advertising. The competition swiftly turned bitter, however, as AHP filed suit in the United States District Court for the Southern District of New York, charging McNeil with false advertising. The principal target of AHP's claim was a safety profile McNeil provided physicians visually linking ibuprofen to aspirin in a comparative display. The effect, AHP asserted, was [**4]  to suggest that ibuprofen shared aspirin's high propensity to irritate the stomach. McNeil counterclaimed, raising allegations that AHP's multi-media advertising campaign concealed its product's side effects.

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848 F.2d 34 *; 1988 U.S. App. LEXIS 7174 **; 6 U.S.P.Q.2D (BNA) 2007 ***

McNeilab, Inc., Plaintiff-Appellee, v. American Home Products Corporation, Defendant-Appellant

Prior History:  [**1]   Appeal from an order of the United States District Court for the Southern District of New York (Conner, J.,), granting a preliminary injunction against misleading comparative advertisements pursuant to section 43(a) of the Lamham Act, 15 U.S.C. § 1125(a) (1982).

McNeilab, Inc. v. American Home Products Corp., 675 F. Supp. 819, 1987 U.S. Dist. LEXIS 11291 (S.D.N.Y., 1987)

Disposition: Affirmed.

CORE TERMS

stomach, consumer, advertising, upset, ibuprofen, misleading, surveys, Lanham Act, district court, acetaminophen, injunction, aspirin, merits, pain, side effect, Products

Civil Procedure, Remedies, Injunctions, Preliminary & Temporary Injunctions, Appeals, Standards of Review, Abuse of Discretion, Clearly Erroneous Review, Antitrust & Trade Law, Consumer Protection, False Advertising, General Overview, Evidence, Relevance, Relevant Evidence, Types of Evidence, Documentary Evidence, Summaries, Lanham Act, Trademark Law, Causes of Action Involving Trademarks, Infringement Actions, Unfair Competition, Federal Unfair Competition Law, Business & Corporate Compliance, False Designation of Origin, Elements of False Designation of Origin, Lanham Act, Entertainment Industry Falsity & Performance Misattribution, Trade Dress Protection, Standing