Mead Johnson has won the latest battle in the baby formula false advertising war that has been waging for years. After thrice being reprimanded by the NAD, Mead Johnson’s latest advertisement for its infant formula, Enfamil Lipil, seems to pass muster, at least according to one district judge. PBM, maker of a rival infant formula similar to Enfamil Lipel, brought suit against Mead Johnson for false advertising. The district court, though, denied PBM’s motion for a temporary restraining order and preliminary injunction. The ad in question stated “[i]t may be tempting to try a less expensive store brand, but only Enfamil Lipil is clinically proven to improve brain and eye development.” However, in a footnote, the ad qualified that statement saying “vs prior formulation for the same product…” (emphasis in original).
These decisions raise questions as to how much work the footnote can do. The FTC's Dietary Supplement Guide provides some guidance on what disclaimers can and can't do. For example, the body of the advertisement should “avoid making inconsistent statements or distracting elements that could undercut or contradict the disclosure."
In the Mead Johnson case, the district judge resolved this issue by ruling that the footnote clarified any possible ambiguity in the advertisement. Given the history of the baby formula false advertising complaints, the one thing we can be sure of is that this ongoing spat, while not in its infancy, still has many years ahead of it.
