Similac "1st Choice Of Doctors" Claim Injunction Reversed

Abbott Labs plans to resume use of the "1st Choice of Doctors" claim in labeling and advertising for Similac infant formula following a Jan. 5 federal appellate ruling overturning a preliminary injunction restricting use of the statement.

A three-judge panel of the Chicago federal appeals court says it is impossible to call the claim misleading "when the absolute level of preference for the leading product is high, and the difference in support from the medical profession substantial."

Mead Johnson, which markets Enfamil infant formula, was granted the preliminary injunction in its lawsuit alleging use of the "1st Choice" statement by Abbott and its Ross Products division is false and misleading. The Bristol-Myers Squibb subsidiary said it will seek a rehearing by the entire Seventh Circuit Court of Appeals and believes the decision is contrary to existing law.

Abbott does not know when it will start using the statement again on Similac packaging and promotional materials. The company said the ruling proves its research is accurate and the claim is appropriate.

The appeals court's opinion reverses a decision by Evansville, Ind. federal court Judge David Hamilton, who found Abbott's claim misleading and temporarily barred the firm from using the statement in advertising or labeling for Similac or other infant brands, except Isomil (¹ (Also see "Abbott "1st Choice Of Doctors" Infant Formula Claim "Misleading" - Judge" - Pink Sheet, 22 Mar, 1999.)).

Judge Hamilton, citing a Mead Johnson-commissioned survey of consumer attitudes about the phrase, concluded the claim implies to consumers that a majority of physicians strongly prefer the product for strictly professional reasons.

However, Abbott's surveys demonstrating majority support were inadequate because they were designed to elicit either weak preferences or preferences based upon grounds other than medical judgment of quality, Judge Hamilton concluded. Other surveys showed Abbott products have the support of only a plurality of doctors, he said.

The appeals court determines Similac is the "1st Choice of Doctors," according to ordinary usage of the term "first" denoting rank in a series.

"More than a score of surveys show that pediatricians prefer Similac over Enfamil...with all other competitors far behind. Many of these surveys show that Similac attracts majority support; most show that two physicians prefer Similar for every one who chooses Enfamil," the appeals court says, finding "absolute and relative preferences for Similac are substantial."

"Even if, like the district court, we throw out the surveys finding that a majority of medical professionals recommend Similac, the remaining surveys find that between 25% and 48% of those questioned rank Similac first, while Enfamil is the preference of between 10% and 40% of the respondents and never beats Similac," the court states.

"Surveys designed to elicit weaker preferences show that Similac receives between 51% and 64% support and Enfamil from 29% to 37%," the judges continue.

The Seventh Circuit says the lower court's reliance on the Mead Johnson survey of consumer attitudes was troublesome because "never before has survey research been used to determine the meaning of words, or to set the standard to which objectively verifiable claims must be held."

"A 'misunderstood' statement is not the same as one designed to mislead," the appeals court notes. "Reducing ads and packaging to meaningless puffery can't be the objective of the Lanham Act - though it is a logical (and likely) outcome of Mead Johnson's approach, given the normal level of confusion and misunderstanding reflected in consumer surveys."

The appellate judges did not rule on Abbott's argument that Mead's lawsuit is barred since the Enfamil maker waited nine years after a similar claim first appeared on Similac to bring suit. However, the Seventh Circuit notes if Enfamil had gained the lead in medical profession surveys by the time the lawsuit was filed, then Similac could not be labeled as the physicians' first choice.

"If on remand Mead Johnson decides to press forward with more evidence in pursuit of permanent relief, then the district judge will have to decide whether it has demonstrated a change in the truthfulness of Abbott's promotion," the appeals court says.

The appeals court also questions Judge Hamilton's order requiring Mead Johnson to post a bond of only $1 mil. when Abbott estimated its out-of-pocket costs would be $5.8 mil. and each point of market share lost resulting from the injunction would cost the company approximately $16 mil.