Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. SmithKline Beecham Corp.
United States Court of Appeals for the Second Circuit
960 F.2d 94 (2d Cir. 1992)
Johnson & Johnson * Merck Consumer Pharmaceuticals Co. (J&J) (plaintiff) made Mylanta, an aluminum-containing antacid with no calcium, while SmithKline Beecham Corp. (SmithKline) (defendant) made competing product Tums, which contained calcium and no aluminum; SmithKline's television commercial highlighted these differences, and J&J sued under the Lanham Act, alleging the ad played on a public misperception that aluminum ingestion causes Alzheimer's disease. J&J's consumer survey of 300 antacid users showed only 18 respondents mentioned competitors' ingredients being bad, with just 6 specifically citing aluminum and 3 more responding negatively about aluminum generally; the district court found J&J's more leading survey questions unpersuasive and ruled for SmithKline, and J&J appealed.
Whether, where the plaintiff cannot demonstrate that a statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement, the plaintiff can maintain an action for false or misleading advertising.