Novartis Doan's Ads Superiority Claims "Material" To Consumers, Court Says

Advertising for Novartis Consumer Health's Doan's Pills as a back pain treatment made implied, deceptive claims of superiority that were material to consumers' purchasing decisions, a federal appeals court says.

Ruling in favor of the Federal Trade Commission, the D.C. Circuit Court of Appeals on Aug. 18 rejects Novartis' argument the implied claims were immaterial because Doan's market share grew little or none during the eight-year period of the challenged ad campaign.

"FTC's definition of materiality...embraces any claim that is 'likely to mislead a reasonable consumer,'" the appellate panel concludes. "There is no requirement of actual deceit. If a claim is material because [it is] likely to deceive, it is not rendered otherwise simply because it is unsuccessfully advertised."

Circuit Judges Karen LeCraft Henderson, Stephen Williams and Raymond Randolph unanimously reject the company's appeal of a May 1999 FTC order finding Doan's ad claims deceptive and imposing $8 mil. in corrective advertising.

FTC directed Novartis to include on all Doan's packaging and ads for one year, and until it has spent $8 mil. on advertising, the statement: "Although Doan's is an effective pain reliever, there is no evidence that Doan's is more effective than other pain relievers for back pain."

The commission alleged a $65 mil. ad campaign from 1988 to 1996 falsely implied Doan's was more effective than other analgesics, including Bayer Aspirin, Whitehall-Robins' Advil and McNeil Consumer Healthcare's Tylenol, for treating back pain. Doan's active ingredient is magnesium salicylate.

The challenged ads, which included 15-second commercials and free-standing inserts, made claims such as, "Doan's is made for back pain relief with an ingredient [other] pain relievers don't have. Doan's makes back pain go away....The Back Specialist." Novartis ceased advertising the line in 1998.

In July 1999, FTC amended its order to reflect Novartis' assertion the company had no plans to resume Doan's advertising. FTC ordered that, absent advertising, the corrective message must appear on product packaging for five years.

In appellate arguments, Novartis asserted there is no evidence the challenged ads played a material role in creating or reinforcing consumer misbeliefs about the analgesic's efficacy, and the corrective advertising is not reasonably related to addressing lingering misbeliefs (¹ (Also see "Doan's Corrective Ads Unrelated To Consumer Misbeliefs - Novartis" - Pink Sheet, 14 Feb, 2000.)).

However, the appeals court finds the challenged Doan's ads "created or reinforced false beliefs in the products' efficacy," and the ads' effects are "likely to linger" even though the campaign was discontinued. The appeals court cites the testimony of an FTC expert witness who opined, based upon two consumer studies, the ad campaign created a continuing belief in the product's superiority.

One of the cited studies found the OTC had a weak image in 1987 prior to the ad campaign. However, in 1996 a disproportionately high percentage of Doan's users and non-users believed the product was more effective than other OTCs at treating back pain, the appeals court says, citing the study findings.

FTC's conclusion that the deceptive ads' effects were likely to linger was not "an irrational inference from the study data," the appellate judges say. These data, the appeals court notes, demonstrated that six months after the ad campaign ended, 77% of Doan's users and 45% of aware non-users continued to believe the product was superior to other OTC back pain remedies.

Turning to Novartis' First Amendment arguments, the court finds the corrective remedy conforms with a Supreme Court standard applicable to governmental restrictions on commercial speech. That standard requires such restrictions "directly advance the state interest involved" and calls for more limited restrictions if they adequately serve a governmental interest.

"The remedy here advances precisely the 'interest involved,' namely the avoidance of misleading and deceptive advertising," the appellate judges say.

Whether a corrective remedy imposes restrictions greater than necessary to serve the interest involved "goes to the appropriateness of the order" under the Supreme Court standard, the appeals court states. "Because the standard has been satisfied here...we conclude the [FTC's] remedy is not overly broad."

Novartis said it disagrees with the court's decision and is considering further appeal. The company maintained corrective advertising is "an extraordinary remedy that should not be applied in this case" and the packaging statement is unprecedented. The firm said it has no plans to advertise the brand.