Formula for false advertising

PBM Products, LLC v. Mead Johnson Nutrition Co. (E.D. Va. Dec. 1, 2009)

According to PBM Products, the maker of store-brand infant formulas has won a $13.5 million jury verdict against Mead Johnson, though I haven't seen a copy of the jury form. My earlier discussion of the court’s denial of a preliminary injunction is here.

The court also ruled on Mead Johnson’s laches defense. PBM didn’t unreasonably delay acting against Mead Johnson; although scattered statements from the challeged ads had appeared in Mead Johnson’s ads for a couple of years before PBM sued, false advertising claims must assess the ad as a whole. “The 2008 Mailer taken as a whole and in context clearly takes a new approach in tone and message towards store brand infant formula. Mead Johnson consciously decided that its marketing should be more aggressive and risky as it witnessed a decrease in its sales and an increase in store brand sales. The 2008 Mailer and its attack on store brands was the result of that marketing decision.”

Mead Johnson has been enjoined from making false statements about PBM, including specifically “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.” Mead Johnson was directed to recall any such ads currently in the “public forum.”