District Court Departs from the Blackwelder Standard in Denying Preliminary Injunction
On May 7, Judge Spencer, Chief Judge of the Eastern District of Virginia, issued an opinion denying a Motion for a Temporary Restraining Order and a Preliminary Injunction in the third round of the ongoing false advertising battle between baby formula makers PBM Products, based in Gordonsville, Virginia, and industry giant, Mead Johnson. See PBM Products v. Mead Johnson Nutrition Co., Civil Action No. 3:09cv269 (Spencer, J.). In doing so, the Court made clear that it moving away from the longstanding rule for preliminary injunctions in the Fourth Circuit set forth in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).
Since 2001, PBM, the largest manufacturer of “store brand” or private label infant formulas in the U.S., and Mead Johnson, the maker of Enfamil®, have fought about the falsity of statements made by Mead Johnson about the nutritional value of PBM’s infant formula. The first two suits, in 2001 and 2002, ended with the entry of temporary restraining orders in favor of PBM that directed Mead Johnson to stop making the disputed statements and to retrieve materials it had sent containing those statements.
On April 27, PBM filed a third suit against Mead Johnson, regarding statements by Mead Johnson about two fats, DHA and ARA, in its Enfamil® product which Mead Johnson calls “LIPIL®.” The parties agreed that both companies’ products contained the same levels of DHA and ARA obtained from the same source. Mead Johnson was careful to make sure, however, that it did not make any statements comparing Enfamil®LIPIL® to any other manufacturer’s product. Rather, all of Mead Johnson’s statements just compared Enfamil® without LIPIL® to Enfamil® with LIPIL®. Mead Johnson also included a disclaimer that it was comparing Enfamil®LIPIL® to the prior formulation of the same product without DHA and ARA. Thus, the Court held that the statements were not literally false. Further, PBM did not present evidence of consumer confusion, and so the Court found that there was no evidence that the statements were implicitly misleading. Since PBM failed to prove a likelihood of success on the merits, the Court found that neither the balance of irreparable harm or the public interest favored PBM and so denied PBM’s motion for preliminary relief.
Like almost all decisions regarding preliminary injunctions in the Fourth Circuit, Judge Spencer began by reciting the preliminary injunction standard from Blackwelder. Blackwelder, however, has come under increasing criticism on the grounds that it overemphasizes the balance of irreparable harm and undervalues the importance of the likelihood of success on the merits. Judge Spencer appeared to agree with that criticism, noting that he had previously cautioned against using the Blackwelder test as “contrary to Supreme Court precedent” and citing a recent Supreme Court decision that emphasized that a plaintiff must show a likelihood of success to obtain a preliminary injunction. Munaf v. Geren, 128 S.Ct. 2207, 2219 (2008).
It is likely that litigants and courts in the Fourth Circuit will continue to cite the Blackwelder test as the standard for preliminary injunctions, but decisions such as Munaf, PBM and others make increasingly clear that a plaintiff seeking a preliminary injunction will have difficulty without a strong showing of a likelihood of success on the merits.
