Second Circuit – False Advertising: Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics, GmbH

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United States Court of Appeals for the Second Circuit

False Advertising

Standard of Medical Profession – Pregnancy Tests

Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics, GmbH

14-2411-cv

Judges Leval, Wesley, and Sannes

Background: The defendant markets over-the-counter home pregnancy tests. It appeals from a judgment which found it liable for false advertising and issued a permanent injunction prohibiting the defendant from using certain advertising and packaging and requiring it to issue corrective notices and advertising. The advertising at issue involves the “weeks Estimator” feature of the defendant’s product, which informs the user the number of weeks elapsed since ovulation. Medical professionals traditionally measures the advancement of a pregnancy not from the date of ovulation or fertilization, but rather from the date of the last menstrual period, which generally occurs approximately two weeks prior to ovulation. The plaintiff alleged the advertising was false as the packaging implied that the metric used is consistent with the one utilized by medical professionals.

Ruling: The Second Circuit affirmed. The court held that the plaintiffs claim is not precluded by the Food, Drug, and Cosmetic Act and there was no error in finding falsity in the defendant’s original packaging. Furthermore, there was no error in finding the revised packaging impliedly false by reason of consumer confusion and there was no error in the ruling that the defendant’s false messages were material and likely to harm the plaintiff. Finally, there was no abuse of discretion in imposing an injunction requiring changes to the defendant’s packaging and requiring the defendant to issue corrective notices and advertising.

Paul D. Clement of Bancroft PLLC for the plaintiff-appellee; Seth P. Waxman of Wilmer Cutler Pickering Hale and Dorr for the defendant-appellant