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A touch of false advertising

By Rebecca Tushnet

Schering-Plough Healthcare Products, Inc. v. Neutrogena Corp., 2010 WL 1992247 (D. Del.)

A very short opinion granting summary judgment on a falsity claim. The ads at issue here were for Neutrogena?s new Ultra Sheer Dry-Touch Sunblock SPF 100k sunscreen. Schering-Plough argued that the package and print ads falsely claimed that the 100k product contained Helioplex, a proprietary photostabilizing agent. Helioplex is the term Neutrogena adopted for a patented combination of avobenzone with diethylhexyl 2,6-naphthalate [ ("DEHN") ] and oxybenzone that prevented avobenzone (the sunscreen) from breaking down when exposed to sunlight. The court relied on this definition, supplied by Neutrogena, at previous stages in this litigation, and Neutrogena used the same definition in §43(a) litigation against Loreal. The problem was that the 100k product, though Helioplex-branded, didn?t contain DEHN until February 2010.

Neutrogena argued that Helioplex need not, by definition, contain DEHN. The court disagreed, because Neutrogena expressly defined Helioplex in its ads to the consuming public to include ?DEHN (a stabilizer),? stating that ?stabilization prevents bond breakage, allowing avobenzone to continue providing high UVA protection.? The public had no basis on which to perceive any flexibility in the formula.

Because of the literal falsity, confusion was presumed. The scope and duration of the violation was unclear; discovery had not yet occurred. The court therefore deferred issues of remedy.

Comment: materiality seems to be an issue. On the other hand, I don?t think that the proliferation of jargon does consumers much good. If Neutrogena is going to tell people that its product is better because it has Helioplex, it?s not too much to ask for that claim to mean something in particular?especially if Neutrogena ran ads explaining what it meant, and wants consumers to see Helioplex as a consistent product benefit of Neutrogena products.

Full post as published by 43(B)log on May 24, 2010 (boomark / email).