## Facts

- Johnson & Johnson * Merck Consumer Pharmaceuticals Co. manufactured and marketed Mylanta, a liquid antacid containing aluminum hydroxide and magnesium hydroxide.
- SmithKline Beecham Corp. manufactured Tums, a chewable antacid using calcium carbonate and marketed as containing calcium and no aluminum or magnesium.
- SmithKline and its advertising agency aired comparative television commercials highlighting that competing antacids (including Mylanta) contained aluminum and/or magnesium, while Tums contained calcium.
- The plaintiff conceded the ingredient statements were accurate but claimed the commercials implicitly suggested Mylanta’s aluminum was unsafe by invoking public fears linking aluminum ingestion to Alzheimer’s disease.
- To show deception, the plaintiff offered a consumer survey of 300 antacid users; on open-ended questions, 18 respondents indicated competitors’ ingredients were “bad for you,” with 6 specifically stating aluminum was not good for you.
- The district court credited open-ended responses as most reliable and discounted more leading survey questions as methodologically flawed.
- After a bench trial, the district court denied injunctive relief and dismissed claims under Lanham Act § 43(a) and New York General Business Law §§ 349–350; the plaintiff appealed.

## Issues

1. Whether comparative advertisements that are literally true can be actionable under Lanham Act § 43(a) based on an alleged misleading implied message that a competitor’s ingredient is unsafe.
2. What showing of consumer deception and injury is required where the asserted falsity rests on implication rather than literal falsity.
3. Whether the plaintiff’s survey and injury proof established that a substantial portion of the relevant audience received the alleged implied message and that the plaintiff was harmed.

## Decision

- The Second Circuit affirmed the judgment denying an injunction and dismissing the complaint.
- The court held the commercials were not literally false and the plaintiff failed to prove they were misleading to a substantial portion of consumers.
- The court found no clear error in the district court’s treatment of the survey, including its decision to discount leading questions and to rely primarily on open-ended responses.
- The court also held the plaintiff failed to establish injury attributable to any actionable deception.

## Legal Principles

- A literally false advertisement may be enjoined without extrinsic evidence of consumer deception; a literally true advertisement alleged to be misleading by implication requires extrinsic proof that consumers were actually misled.
- Lanham Act liability for implied falsity requires proof that a substantial portion of the relevant audience received the false belief and that injury occurred (or is likely) because of the deception.
- Reliable consumer survey evidence is commonly used to prove implied misleadingness; courts may discount surveys where questions are leading or methodologically unreliable.
- An advertiser’s alleged intent to exploit a public misconception does not substitute for proof that the challenged message was actually conveyed to a substantial segment of consumers.

## Conclusion

The Second Circuit upheld denial of injunctive relief because the plaintiff did not prove, through reliable extrinsic evidence, that the literally true comparative commercials conveyed an implied message to a substantial portion of consumers that Mylanta’s aluminum was unsafe, and it did not show resulting injury.


Johnson & Johnson * Merck Consumer Pharms. Co. v. SmithKline Beecham Corp., 960 F.2d 294 (2d Cir. 1992)