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Mead Johnson & Co. v. Abbott Laboratories, 201 F.3d 883, 2000-1 Trade Cases P 72,743, 53 U.S.P.Q.2d 1367

Facts

Abbott Laboratories marketed its infant formula, Similac, with the claim '1st Choice of Doctors,' suggesting that more physicians preferred it over competitors like Enfamil. Mead Johnson challenged this claim, arguing it was misleading and did not reflect the actual preferences of physicians. The district court found that the claim implied a majority preference among doctors, leading to the issuance of a preliminary injunction against Abbott. However, the appellate court noted that surveys indicated a significant preference for Similac, even if not a majority.

The phrase appears on the packaging of Similac®, an infant formula made by the Ross Pediatrics division of Abbott Laboratories.

Issue

Did the phrase '1st Choice of Doctors' used by Abbott Laboratories in its advertising mislead consumers regarding the preference of physicians for its infant formula?

Does (must?) this phrase mean something more—for example, that a majority of all physicians prefer the product, or that the preference is strong or based on particular grounds?

Rule

The Lanham Act prohibits misleading claims in advertising, and the determination of whether a claim is misleading can involve consumer understanding and survey evidence.

Section 43(a)(1) forbids misleading as well as false claims, but interpreting 'misleading' to include factual propositions that are susceptible to misunderstanding would make consumers as a whole worse off by suppressing truthful statements that will help many of them find superior products.

Analysis

The appellate court found that the district court erred in interpreting the phrase '1st Choice of Doctors' as implying a majority preference among physicians. The court emphasized that the phrase could be understood to mean that more physicians preferred Similac over other brands, without necessitating a majority. The court also criticized the reliance on consumer surveys to define the meaning of the phrase, arguing that such surveys could misinterpret the ordinal nature of the term 'first.'

By using Mead Johnson's survey to define the meaning of the phrase '1st Choice of Doctors' and then insisting that verification meet the standards thus established, the district court committed a legal error.

Conclusion

The Court of Appeals reversed the district court's decision, stating that the claim '1st Choice of Doctors' was not misleading under the Lanham Act and that the preliminary injunction should not have been granted.

Reversed.

Who won?

Abbott Laboratories prevailed in the appeal because the appellate court found that the claim '1st Choice of Doctors' was not misleading and that the district court had misapplied the law regarding consumer surveys.

Abbott Laboratories prevailed in the appeal because the appellate court found that the claim '1st Choice of Doctors' was not misleading and that the district court had misapplied the law regarding consumer surveys.

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