McNeil-PPC, Inc., v. Pfizer, Inc.

In McNeil-PPC v. Pfizer, District Judge Chin concluded McNeil-PPC was likely to suffer irreparable harm because

Choose from the following options.

the two companies are in head-to-head competition for the 13 percent of people who floss regularly.

McNeil-PPC is likely to start producing its own brand of mouthwash.

the two companies are in head-to-head competition for the non-flossers or reluctant flossers

Pfizer's advertising for Listerine specifically compares its product to McNeil's floss.

the two companies are in head-to-head competition for the non-flossers or reluctant flossers

In McNeil-PPC v. Pfizer, McNeil argued the Listerine advertisement contained the _______________ that rinsing with Listerine is as effective as flossing.

Choose from the following options.

literal falsehood

implicit falsehood

literal falsehood

What law did McNeil-PPC Inc. accuse Pfizer Inc. of violating when it ran its advertisements for Listerine mouthwash?

Choose from the following options.

Trade Libel Law.

Federal Trade Commission Act.

Lanham Act.

Fairness in Advertising Act.

Lanham Act.

The U.S. District Court that heard McNeil-PPC's lawsuit against Pfizer over its Listerine commercials said a plaintiff, to establish an ad contains a false implication under the Lanham Act, must show that the implication was taken away by at least what percentage of the audience?

Choose from the following options.

40 percent.

30 percent.

50 percent.

20 percent.

20 percent.

In its defense, Pfizer argued that its advertising campaign for Listerine, which McNeil-PPC said was misleading, had been approved by the

Choose from the following options.

Federal Trade Commission.

Food and Drug Administration.

American Dental Association.

American Medical Association.

American Dental Association.

In its lawsuit against Pfizer over the Listerine advertisements, McNeil-PPC said the impact of the ads on its business was that

Choose from the following options.

while sales of string floss remained stable, sales of the Reach Access Daily Flosser and Power Flosser declined.

while sales of the Reach Access Daily Flosser and the Power Flosser remained stable, sales of string floss declined.

while sales of the Power Flosser increased, sales of string floss and of the Reach Access Daily Flosser declined.

while sales of the Reach Access Daily Flosser remained stable, sales of string floss and the Power Flosser declined.

while sales of string floss remained stable, sales of the Reach Access Daily Flosser and Power Flosser declined.

In McNeil's lawsuit against Pfizer, Pfizer said it conducted two studies of the effect of Listerine mouthwash on plaque before it ran its advertisements that Listerine is as effective as floss. Of those two studies

Choose from the following options.

neither study showed Listerine as effective as floss.

both studies showed Listerine as effective as floss.

the Bauroth study showed Listerine as effective as floss but the Sharma study did not.

the Sharma study showed Listerine as effective as floss but the Bauroth study did not.

both studies showed Listerine as effective as floss.

In McNeil-PPC v. Pfizer, McNeil argued the Listerine advertisement contained the _______________ that clinical studies proved rising with Listerine could replace flossing.

Choose from the following options.

implicit falsehood

literal falsehood

implicit falsehood

The researchers who conducted the studies of the effectiveness of Listerine for Pfizer both said the results for the group who flossed may have been affected by

Choose from the following options.

a deterioration in the subjects' flossing technique over time

the subjects' using Listerine mouthwash as well as flossing.

the quality of the dental floss the subjects in the flossing group used.

the likelihood that the subjects' skill at flossing improved over time.

a deterioration in the subjects' flossing technique over time

Before suing Pfizer over its advertisements for Listerine, McNeil-PPC conducted surveys of consumers to find out what messages they took away from the ads. McNeil’s surveys on the message consumers took away from the Big Bang ad found

Choose from the following options.

inconclusive results.

few respondents believed Listerine can replace floss.

a substantial percentage of respondents believed any mouthwash can replace flossing.

a substantial percentage of respondents believed Listerine can replace flossing.

a substantial percentage of respondents believed Listerine can replace flossing.

Plaintiff in the case?

McNeil-PPC, Inc. (a wholly-owned subsidiary of Johnson & Johnson and market leader in dental floss)

Defendant in the case?

Pfizer Inc. (manufacturer and marketer of Listerine Antiseptic Mouthrinse)

What was the core of Pfizer's challenged advertising campaign for Listerine?

The claim that Listerine's as effective as floss at fighting plaque and gingivitis, supported by the statement: "Clinical studies prove it."

What federal law did McNeil-PPC allege Pfizer violated?

§43(a) of the Lanham Act (15 U.S.C. §1125(a)) concerning false advertising.

What were the two main ways McNeil-PPC contended Pfizer's ads were false and misleading?

1. Literally False (the explicit claim that clinical studies prove it's "as effective as floss"). 2. Implicitly False (the implied message that Listerine is a replacement for floss).

What was the court's ultimate conclusion regarding Pfizer's advertisements?

The court concluded that Pfizer’s advertisements are false and misleading and granted a preliminary injunction.

Why did both Pfizer and McNeil-PPC see a large market to "be tapped"?

About 87% of consumers floss either infrequently or not at all because it's difficult/time-consuming.

What were the names of the two clinical studies Pfizer sponsored to compare Listerine and floss efficacy?

The "Sharma Study" (2002) and the "Bauroth Study" (2003).

What were the key findings of the Sharma and Bauroth studies regarding Listerine vs. Floss?

Listerine and flossing were significantly more effective than the control rinse, and Listerine's results were generally better than the floss results.

What caution did the authors of both Pfizer-sponsored studies issue?

They noted that the floss group's plaque reductions were lower than expected, suggesting poor and decreasing compliance/technique in unsupervised at-home flossing.

What visual was repeatedly used in both the professional and consumer ads to convey the "as effective as floss" message?

An image of a Listerine bottle balanced—equally—on a scale against a container of dental floss.

What explicit language did the ADA approve for consumer advertising?

"Rinsing with Listerine is as effective as floss at reducing plaque and gingivitis between teeth," along with the admonition: "Floss daily."

What was the key finding of McNeil-PPC's consumer survey regarding the implied message of the "Big Bang" commercial?

50% of respondents took away the message that "you can replace floss with Listerine."

How did the launch of the advertising campaign affect sales of McNeil-PPC's string floss versus its Power Flosser/RADF?

String floss sales were "relatively stable," but sales of the RADF and Power Flosser have taken a steep decline (as users of these are typically "reluctant flossers" susceptible to a replacement message).

What is the difference in burden of proof for a claim that is (1) literally false vs. (2) implicitly false under the Lanham Act?

(1) Literally False (explicit claim): Relief can be granted without reference to the ad's impact on the public. (2) Implicitly False (misleading): Extrinsic evidence (like consumer surveys) must confirm the ad is likely to mislead.

What must a plaintiff prove to show a superiority claim that purports to be based on test results is literally false (an "establishment claim")?

The plaintiff need only prove that the tests referred to were not sufficiently reliable to permit one to conclude with reasonable certainty that they established the proposition for which they were cited.

When is irreparable harm presumed in a Lanham Act false advertisement case?

When the plaintiff demonstrates a likelihood of success in showing that a comparative advertisement that mentions the plaintiff's product by name is literally false.

Why did the court find that the decline in sales of McNeil-PPC's RADF and Power Flosser was more telling than stable string floss sales?

Users of the Power Flosser/RADF are predominantly "folks who don't like to floss" and would be "more susceptible to a message" suggesting Listerine is a replacement for flossing.

What specific action/visual in the "Big Bang" commercial reinforced the implicit message of "liquid floss"?

The commercial showed a narrow stream of blue liquid flowing from the Listerine bottle, tracking a piece of dental floss, and then swirling around and between teeth.

What was the ADA's reason for denying Pfizer's request to use the claim "Now proven equally essential as flossing"?

The ADA believed that "as essential as" implies that all consumers must both floss and rinse with Listerine, which the studies did not support.

How must implied falsity be proven under the Lanham Act?

Plaintiff must demonstrate, by extrinsic evidence (usually surveys), that the ad tends to mislead or confuse consumers.

What is the central question for the court in an implied falsehood claim?

"What does the public perceive the message to be?" (The judge cannot rely solely on their own intuitive reaction).

What must a consumer survey typically show for an implied claim to be proven?

A substantial percentage of consumers took away the message the plaintiff alleges is misleading.

What percentage of consumers taking away a false message is generally considered "substantial"?

Cases have held that 20% would constitute a substantial percentage.

When can a plaintiff skip consumer survey evidence for an implied falsity claim?

If the plaintiff demonstrates the defendant "intentionally set out to deceive the public" and the conduct is of an "egregious nature."

What presumption arises if intentional and egregious deceptive conduct is proven?

A presumption arises that "consumers are, in fact, being deceived."

In the McNeil-PPC case, what two reasons did the court cite for finding a likelihood of irreparable harm?

1. Likelihood of success on the literal falsity claim (which presumes harm). 2. Head-to-head competition for non-flossers/reluctant flossers, showing a logical causal connection to lost sales.

What evidence supported the claim that the ads already had adversely affected McNeil-PPC's sales?

A sharp decline in sales of the RADF and Power Flosser (used by reluctant flossers), and a 10% increase in Listerine sales.

Why did the court find Pfizer's "studies prove" claim to be literally false regarding the scope of the studies?

The studies only included subjects with mild to moderate gingivitis, yet the ads made a blanket claim against all plaque and gingivitis (excluding severe cases and periodontitis).

Why did the court find Pfizer's "studies prove" claim to be literally false regarding the reliability of the flossing comparison?

The studies only proved Listerine was as effective as improperly-used floss, not as effective as floss used correctly, as the flossing group's technique deteriorated.

What was the explicit replacement message conveyed to a substantial percentage of consumers in the McNeil-PPC case?

The Ridgway surveys showed 31% (Big Bang) and 26% (shoulder label) took away the message that "you can replace floss with Listerine."

Why did the court reject Pfizer's argument that its disclaimers (e.g., "Floss Daily") negated the implied replacement message?

The few words of disclaimer were lost when the ads were considered as a whole, as the words and images clearly suggested Listerine was an equal substitute.

What was Pfizer's two-part argument that the implied replacement message was true?

1. Studies proved Listerine was as effective as floss. 2. Flossing provides no clinical benefit other than fighting plaque and gingivitis (calling other beliefs a "myth").

How did the court counter Pfizer's second premise (that flossing provides no other benefits)?

The court found substantial proof that flossing provides benefits Listerine does not, such as removing plaque subgingivally and helping to reduce tooth decay and periodontitis.

What "public health risk" did the court find Pfizer's false and misleading advertising posed?

The ads presented a danger of undermining the efforts of dental professionals and the ADA to convince consumers to floss daily.