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A Manhattan federal judge has enjoined Pfizer Inc. from claiming in advertisements that its Listerine mouthwash is “as effective as floss” in preventing plaque and gum disease. Southern District of New York Judge Denny Chin said the clinical studies on which Pfizer relied in making its claim were flawed and did not show Listerine was as effective as proper flossing. He said the ads’ claims were false and could mislead consumers into thinking that using mouthwash could replace flossing. The judge said he thought Pfizer’s ads could even pose a public health risk. The ads “present a danger of undermining the efforts of dental professionals … to convince consumers to floss on a daily basis,” Judge Chin wrote in McNeil-PPC v. Pfizer, 04-7684. Pfizer’s advertising campaign was originally targeted at the professional dental community but expanded in June to reach a broad consumer audience. A current television commercial says “Listerine’s as effective as floss at fighting plaque and gingivitis. Clinical studies prove it.” The TV ads also say “there’s no replacement for flossing,” while print ads contain the words “floss daily” in small print. The American Dental Association approved Pfizer’s campaign on the condition that the company not promote a message that consumers should stop flossing. Pfizer sponsored the clinical studies referred to in its ads. In the two six-month studies, twice-daily rinsing with Listerine was shown to be more effective than flossing among subjects with mild or moderate gingivitis, but researchers in both cases expressed concern that subjects might not be employing proper flossing technique. The studies also did not include anyone with severe gingivitis or periodontitis, a more serious gum disease. McNeil-PPC, a subsidiary of Johnson & Johnson and the nation’s largest manufacturer of dental floss, sued Pfizer in September for false advertising and unfair competition. The company sought to enjoin Pfizer’s Listerine campaign on the grounds that its claims for the mouthwash’s effectiveness were causing irreparable harm to McNeil-PPC’s business. In granting an injunction, Chin ruled that McNeil-PPC would likely suffer such harm and that it was also likely to prevail on its claims of false advertising and unfair competition. Chin found that Pfizer’s claims were not just implicitly false or misleading but literally false. He said the clinical studies “were not sufficiently reliable to permit one to conclude with reasonable certainty that Listerine is as effective as floss in fighting plaque and gingivitis,” ruled Chin. “What the two studies showed was that Listerine is as effective as floss when flossing is not done properly.” The judge was not persuaded by arguments that the tests accurately depicted the fact that many people do not floss properly in the “real world.” “Although it is important to determine how a product works in the real world, it is probably more important to first determine how a product will work when it is used properly,” the judge wrote. In finding that Pfizer’s claims were implicitly false, the judge also cited consumer research studies commissioned by both McNeil-PPC and Pfizer that showed that, notwithstanding the Pfizer’s disclaimers, a large number of consumers who saw Pfizer’s ads believed using Listerine could essentially replace flossing. “Pfizer’s ads are clearly suggesting to consumers, through its overall words and images, that if they do not have the time or desire to floss, they can rinse with Listerine instead,” Chin found. McNeil-PPC’s lawyer, Harold Weinberger of Kramer Levin Naftalis & Frankel, hailed Chin’s decision and said it would send a strong message to advertisers. “If you tell someone they can have candy or castor oil, what are they going to pick?” he asked. “That’s why our client was upset” about Pfizer’s ads. Weinberger said Friday the exact scope of the injunction would be the subject of a conference with Chin scheduled later that day. He noted that, in addition to several months of TV and print ads, the Listerine campaign had included the application of special labels to all Listerine bottles. These, he said, might all have to be removed or covered. Pfizer was represented by Fredric Yerman of Kaye Scholer. His office referred calls to Pfizer. The company did not return calls seeking comment.

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