On May 14, 2002 the U.S. Court of Appeals for the Third Circuit upheld a district court preliminary injunction prohibiting Johnson & Johnson from marketing an antacid under the name "Mylanta Night Time Strength" (MNTS). The court in Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharmaceuticals Co. agreed with plaintiff Novartis (makers of Maalox) that because that particular formulation was no more effective against heartburn at night than any other time of day, it likely constituted false advertising in violation of Section 43(a) of the Lanham Act.
The 2-1 decision affirmed the lower court's rulings "that (1) the MNTS name necessarily implies a false message of special formulation for nighttime relief and that (2) the MNTS name and label mislead a substantial portion of consumers to believe that the product provides all-night relief. "
Judge Bright's dissent made the point that the majority had created "a new rule that allows a district court to conclude that a completely unsubstantiated advertising claim can be per se false despite the fact that, under Food & Drug Administration regulations, no antacid manufacturer can substantiate its efficacy claims in any meaningful way. "
Why This Matters: Unlike the typical Section 43 case, the Third Circuit found the complete lack of substantiation for the nighttime claim...