Pearls of Wisdom: Tampax claims allowed to continue

Playtex Products, Inc. v. Procter & Gamble Co., 2009 WL 2043897 (S.D.N.Y.)

The court styled this “the latest skirmish in the tampon advertising wars,” concerning Playtex’s allegations that P&G’s claims of superior protection for Tampax Pearl were false.

Tampax Pearl is the leader in the plastic applicator tampon market, followed by Playtex’s Gentle Glide. Playtex sued P&G in 2002 over ads claiming better leakage protection and comfort than Gentle Glide, and won a jury verdict. The resulting injunction barred P&G from: “communicating or stating that (a) Tampax Pearl tampons are superior in wearing comfort or protection to Playtex Gentle Glide tampons; and (b) Tampax Pearl tampons are superior in absorbency to or have an absorbent braid for better protection than Playtex Gentle Glide tampons, either explicitly or implicitly by reference to ‘the leading plastic’ applicator tampon, and without limitation of reference to the use of comparative words such as ‘super,’ ‘better,’ or ‘more’....”

P&G developed a new version of Tampax Pearl and moved in 2007 to vacate or modify the injnction. The court did so, allowing a superior protection/absorbency claim, based on evidence that P&G had made a number of changes to its manufacturing process that improved Tampax Pearl’s performance. Playtex had developed a new version of Gentle Glide and was ready to market it, but no evidence about it was presented at the hearing. Playtex told P&G that, because of the new version, any claims of superiority would be false, and Playtex would sue.

P&G sued for declaratory relief to preclude any such lawsuit on res judicata grounds, and began running ads in which it asserted that Tampax Pearl protected “even better than the next leading brand.” The court denied P&G’s motion, because the current dispute concerned two products that didn’t exist in 2002. Playtex then sued for false advertising, alleging that claims of (1) superior leakage protection, (2) “more leak-free periods,” and (3) a leak-stopping braid were false. P&G subsequently abandoned claim (2). It’s now advertising that “Tampax Pearl stops leaks better than the next leading brand.”

Playtex ran an in vivo study comparing the tampons in each available absorbency (regular, super, and super-plus). Its study concluded that there was no difference in leakage rates across all absorbencies of both brands. However, the study was flawed in that half of the participants used all the test tampons, but less than half reported using that number, and the number used would match or exceed the average number used per period, except that most women use multiple absorbencies during their periods, so there was something unusual going on with the test uses—it seems that many women didn’t follow the instruction to use the test tampons only when they’d normally use that absorbency. (I’m not sure this last makes reported leaks unreliable, but it does seem that it was difficult to get accurate reporting from users.) Because the used tampons weren’t collected, there was no way to cross-check accuracy, and consumers have varying definitions of “leakage.”

Playtex and P&G also had competing in vitro tests of the braid.

Given the flaws in the Playtex in vivo study, Playtex didn’t meet its burden to show falsity, and the competing results from the in vitro studies likewise prevented Playtex from showing likely success on the merits.