Business 8th Edition by Marianne Jennings

Exercise 14

Stringing Them Along on No Floss
FACTS
In June 2004, Pfizer Inc. ("Pfizer") launched a consumer advertising campaign for its mouthwash, Listerine Antiseptic Mouthrinse. Print ads and hangtags on the bottles in the stores featured an image of a Listerine bottle balanced on a scale against a white container of dental floss.
The campaign also featured a television commercial that announced, "Listerine's as effective as floss at fighting plaque and gingivitis. Clinical studies prove it." Although the commercial cautions that "[t]here's no replacement for flossing," the commercial repeats two more times the message that Listerine is "as effective as flossing against plaque and gingivitis." The commercial also shows a narrow stream of blue liquid flowing out of a Cool Mint Listerine bottle, then tracking a piece of dental floss being pulled from a white floss container, and then swirling around and between teeth-bringing to mind an image of liquid floss.
McNeil-PPC, Inc. ("PPC") (a division of Johnson Johnson), the market leader in sales of string dental floss and other interdental cleaning products, brought suit alleging that Pfizer engaged in false advertising and unfair competition in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). PPC contends that Pfizer's advertisements are false and misleading because the ads implicitly claim that Listerine is a replacement for floss-that all the benefits of flossing may be obtained by rinsing with Listerine.
PPC filed a motion for an injunction to stop Pfizer from running the ads.
JUDICIAL OPINION
CHIN, District Judge
Traditionally, the "most widely recommended" mechanical device for removing interproximal plaque (the deposits located in the hard-to-reach areas between the teeth) is dental floss. The ADA recommends "brushing twice a day and cleaning between the teeth with floss or interdental cleaners once each day to remove plaque from all tooth surfaces." Flossing provides a number of benefits. It removes food debris and plaque interdentally and it also removes plaque subgingivally. As part of a regular oral hygiene program, flossing helps reduce and prevent not only gingivitis but also periodontitis and caries.
Some 87% of consumers, however, floss either infrequently or not at all. Although dentists and dental hygienists regularly tell their patients to floss, many consumers do not floss or rarely floss because it is a difficult and time-consuming process.
As a consequence, a large consumer market exists to be tapped. If the 87% of consumers who never or rarely floss can be persuaded to floss more regularly, sales of floss would increase dramatically. PPC has endeavored, with products such as the RADF and the Power Flosser, to reach these consumers by trying to make flossing easier.
In the context of this case, therefore, Pfizer and PPC are competitors.
Pfizer sponsored two clinical studies involving Listerine and floss: the "Sharma Study" and the "Bauroth Study." These studies purported to compare the efficacy of Listerine against dental floss in controlling plaque and gingivitis in subjects with mild to moderate gingivitis.
The authors of the Sharma Study concluded that the study provided "additional support for the use of the essential oil mouthrinse as an adjunct to mechanical oral hygiene regimens." They cautioned that "[p]rofessional recommendations to floss daily should continue to be reinforced."
The Bauroth Study authors concluded: "[W]e do not wish to suggest that the mouthrinse should be used instead of dental floss or any other interproximal cleaning device."
The ADA reported on the Pfizer studies in its own website. The ADA wrote that "[w]hile some study results [referencing the Sharma and Bauroth Studies] indicate the use of a mouth rinse can be as effective as flossing for reducing plaque between the teeth," it continued to recommend "brushing twice a day and cleaning between the teeth with floss or interdental cleaners once each day."
A number of individual dentists and hygienists complained directly to Pfizer that consumers would get the wrong message.
From the time Pfizer launched its advertising campaign, sales of both the RADF and the Power Flosser have taken a steep decline. Consumers who use the RADF and Power Flosser… are predominantly "folks who don't like to floss," who "would love to have a replacement for flossing." These consumers "would be more susceptible to a message like the Listerine advertising campaign."
To prevail on a Lanham Act false advertising claim, a plaintiff must demonstrate the falsity of the challenged advertisement, by proving that it is either (1) literally false, as a factual matter; or (2) implicitly false, i.e., although literally true, still likely to mislead or confuse consumers. The false or misleading statement must be material.
The two studies included in their samples only individuals with mild to moderate gingivitis. They excluded individuals with severe gingivitis or with any degree of periodontitis, and they did not purport to draw any conclusions with respect to these individuals. Hence, the literal claim in Pfizer's advertisements is overly broad, for the studies did not purport to prove that Listerine is as effective as floss "against plaque and gingivitis," but only against plaque and gingivitis in individuals with mild to moderate gingivitis. Consequently, consumers who suffer from severe gingivitis or periodontitis (including mild periodontitis) may be misled by the ads into believing that Listerine is just as effective as floss in helping them fight plaque and gingivitis, when the studies simply do not stand for that proposition.
Pfizer and its experts argue that the two studies are reliable, notwithstanding the indications that the participants in the flossing group did not floss properly, because these conditions reflect "real-world settings." But the ads do not say that "in the real world," where most people floss rarely or not at all, and even those who do floss have difficulty flossing properly, Listerine is "as effective as floss." Rather, the ads make the blanket assertion that Listerine works just as well as floss, an assertion the two studies simply do not prove. Although it is important to determine how a product works in the real world, it is probably more important to first determine how a product will work when it is used properly.
I find that Pfizer's false and misleading advertising also poses a public health risk, as the advertisements present a danger of undermining the efforts of dental professionals-and the ADA-to convince consumers to floss on a daily basis.
Injunction granted.
Why are mouthwash and floss competitors?