December 2009 Baby Formula Company Awarded Injunction in False Advertising Trial
After an eight-day jury trial and a $13.5 million damages award last month in its favor, Chief Judge James R. Spencer this week granted PBM Products’ request for injunctive relief in PBM Products, LLC v. Mead Johnson Nutrition Company, et al., no. 3:09-cv-269 (E.D. Va., Richmond Div.). PBM, the maker of store-brand baby formula, had sued Mead Johnson for, among other things, false advertising. At the center of the dispute were Mead Johnson’s advertisements that its more expensive baby formula is clinically proven to improve brain and eye development, among other representations about the unique nutritional advantages of its formula in comparison to store brand formula. At trial, however, PBM was able to prove that its store-brand formula has the same nutritional values as Mead Johnson’s formula.
After the resolution of Mead Johnson’s laches defense and in light if the jury’s verdict in PBM’s favor, Judge Spencer granted PBM’s request for injunctive relief and enjoined Mead Johnson from publishing and circulating any advertisement or promotional material with any false representation about its formula and from making any false statement or representation about its formula, including “It may be tempting to try a less expensive store brand, but only Enfamil LIPIL is clinically proven to improve brain and eye development,” and “There are plenty of other ways to save on baby expenses without cutting back on nutrition.” Finally, the Court directed Mead Johnson to retrieve all advertisements, materials or literature with such claims already in the public forum.
While this may not be the last we hear of this case, the verdict is a warning to companies to be careful about comparative advertising claims that might leave a false impression even if they are not literally false.
