Kramer Levin Naftalis & Frankel LLP has one of the nation’s premier advertising practices. We represent many of the nation’s largest advertisers, including major pharmaceutical and consumer products companies, along with small and medium-sized retailers, software firms and other advertisers. We regularly provide our clients with advice regarding claim substantiation and advertising clearance. Over the past 25 years, the firm has litigated and tried some of the most significant cases under the federal false advertising statute, the Lanham Act. Chambers USA has consistently ranked our Advertising practice as among the best in the country. Additionally, Benchmark: Litigation ranks Harold P. Weinberger, who heads our Advertising practice and is a Fellow of the American College of Trial Lawyers, as one of the top lawyers in Lanham Act litigation.

Kramer Levin has had extraordinary success litigating and trying advertising suits on behalf of its clients. We have prevailed in many highly publicized and significant cases, on behalf of both plaintiffs and defendants. Recent successes include: 

• In one of the largest false advertising verdicts ever, a jury in the Eastern District of Virginia found Mead Johnson liable for falsely claiming that its Enfamil infant formula provided superior nutrition compared to store brand infant formula manufactured by our client PBM Products, and awarded PBM $13.5 million in damages. The Court also completely dismissed Mead Johnson’s $40 million Lanham Act counterclaim, and issued a permanent injunction barring Mead Johnson from making any false claims about PBM's infant formula and directing Mead Johnson to retrieve the offending advertisements from the public domain.
  
  
• We won a major false advertising victory for Bracco Diagnostics Inc. The U.S. District Court for the District of New Jersey awarded Bracco extremely broad relief against false advertising defendant GE Healthcare, including a permanent injunction barring GE’s false claims of superior safety for its Visipaque x-ray contrast agent, an order requiring GE to issue a corrective press release and corrective advertisements and to re-train its sales and marketing personnel, together with $11.4 million in compensatory damages (also one of the largest awards to date in a false advertising action). GE, which had asserted a broad counterclaim against Bracco, was awarded no legal or equitable relief. Central to the dispute were false claims that GE’s promotional materials and its sales representatives made to customers regarding the purported superior safety of GE’s x-ray contrast agent Visipaque over Bracco’s competing Isovue product. 
  
  
• United States District Judge William H. Pauley III in “the latest skirmish in the tampon advertising wars” recently denied Playtex’s motion to preliminarily enjoin our client Procter & Gamble from airing advertising that its Tampax Pearl tampons are superior to Playtex’s Gentle Glide tampons. Playtex and P&G had been locked in tampon advertising litigation since 2002. In 2003, the Court issued a permanent injunction enjoining P&G from claiming that Tampax Pearl provided superior leakage protection compared to Playtex’s Gentle Glide. In February 2008, the Court granted the unusual remedy of modifying the injunction, holding that P&G’s product had sufficiently changed from the version P&G marketed in 2003 that was the subject of the injunction, and that P&G’s tests proved that its product was now superior to Playtex’s with respect to leakage protection. After Playtex notified P&G that Playtex also had changed its tampon product, Playtex moved to enjoin P&G from making claims of superior leakage protection. Following a preliminary injunction hearing, the Court ruled in P&G's favor and denied Playtex’s motion.
  
  
• We defended our client AstraZeneca in a false advertising suit challenging AstraZeneca’s advertising for Nexium®, one of the country’s best selling prescription drugs. In that case, the Court dismissed TAP Pharmaceutical’s $247 million damage claim and granted AstraZeneca summary judgment on virtually all of TAP’s claims. 
  
  
• Following a decision by a federal district judge that issued a permanent injunction and corrective advertising award in favor of our client, Johnson & Johnson Vision Care, against CIBA Vision Corporation, we secured a verdict finding of willful false advertising and an award of damages following a two week jury trial.
  
  
• We represented Johnson & Johnson and its subsidiary, Neutrogena, in a Lanham Act false advertising suit challenging L’Oreal’s advertising for its sunscreen moisturizer. After we moved for a preliminary injunction and conducted expedited discovery, L’Oreal agreed to stop the advertising in question.
  
  
• On behalf of McNeil-PPC, Inc. — a subsidiary of Johnson & Johnson and the market leader of dental floss — we secured a preliminary injunction against Pfizer, Inc., at the time the manufacturer of Listerine® mouthwash. In an opinion widely covered in the press, a federal court found Pfizer’s “Listerine® is as effective as floss” advertising campaign false and misleading. The court entered a broad preliminary injunction that, in addition to precluding Pfizer from making the false claims, required Pfizer to cover over labels on Listerine® bottles displaying the offending material.
  
  
• We successfully defended P&G in a suit brought by Colgate-Palmolive, alleging that P&G’s advertising for its Crest® Whitestrips™ at-home tooth whitening product was false and misleading. The lawsuit challenged a successful advertising campaign that helped make the P&G product the market leader in the at-home whitening category. Colgate sought an injunction and $80 million in damages. Following a three week trial, a jury found no liability and thus awarded no damages — a complete victory for our client.
  
  
• In another prominent case that resulted in a landmark ruling, Zeneca v. Eli Lilly, Kramer Levin obtained a preliminary injunction on behalf of what is now AstraZeneca, enjoining claims made by sales representatives employed by Eli Lilly for its drug Evista®.
  
  
• We obtained a swift victory for our client Johnson & Johnson Vision Care, the manufacturer of ACUVUE® brand contact lenses, in a case commenced against Ocular Insight, Inc., a company that was marketing competing lenses as “FDA approved generic equivalent” replacements for ACUVUE® lenses. The federal court complaint alleged that this and other claims constituted false advertising. Ocular Insight agreed to cease its advertising and voluntarily enter into a permanent injunction prohibiting it from making the claims in the future. Ocular Insight also agreed to issue corrective advertising explaining that its lenses are not “approved” by the FDA and that the FDA does not even perform the function of assessing whether a contact lens may be prescribed as a “generic equivalent” lens.
  
  
• The firm secured a favorable settlement for our client The Dial Corporation, the manufacturer of Dial Complete® antibacterial soap, in a case commenced in federal court against Vi Jon, Inc., a private label manufacturer that was distributing an inferior soap that it positioned as a Dial Complete generic. The Vi Jon product included a claim on its packaging inviting consumers to compare it to Dial Complete. As part of the settlement, Vi Jon agreed to cease making its “compare to” claim and not to make any efficacy or “compare to Dial Complete” claims for its product without specific testing to support such claims.
  
  
• We secured a favorable settlement for our client P&G, manufacturer of Crest® Pro Health™ Rinse, against Vi-Jon Laboratories LLC, a private label manufacturer distributing a generic mouth rinse that it advertised as comparable to and in packaging confusingly similar to P&G’s mouth rinse product. As part of the settlement, Vi Jon agreed to withdraw its product from the market, not to use bottle designs that were confusingly similar to those of P&G, not to make “compare to Crest Pro-Health” or gingivitis efficacy claims without specific testing to support such claims, and to pay P&G monetary damages.
  
  
• We also obtained a temporary restraining order enjoining S.C. Johnson from making comparative claims disparaging P&G’s advertising for its Swiffer® household cleaning product, and defeated S.C. Johnson’s challenge to P&G’s Swiffer® advertising in an arbitration proceeding heard by a former federal judge.

Other major cases include the successful defense of advertising for the Aleve® analgesic, American Home Products v. Procter & Gamble, and the successful defense of advertising for P&G’s bathroom cleaning product, L&F Products v. Procter & Gamble. Several of Kramer Levin’s advertising cases have resulted in significant appellate court decisions interpreting the Lanham Act, including L&F Products v. Procter & Gamble, 45 F.3d 709 (2d Cir. 1995), Procter & Gamble v. Chesebrough-Ponds Inc., 747 F.2d 114 (2d Cir. 1984) and Sandoz Pharmaceuticals Corp. v. Richardson-Vicks Inc., 902 F.2d 222 (3d Cir. 1990), a highly significant case involving the interrelationship between the Food & Drug Administration’s regulation of over-the-counter (OTC) drugs and the Lanham Act.

Other significant false advertising cases include: 

• Georgia Pacific v. Procter & Gamble, in which we represented Procter & Gamble in a suit challenging advertising for Bounty Paper Towels.
  
  
• Mylan v. Procter & Gamble, in which we defended P&G’s advertising for Prilosec OTC® against a challenge by a generic manufacturer of omeprazole. 
  
  
• Johnson & Johnson Vision Products v. Bausch & Lomb, in which we successfully prosecuted a claim that Bausch & Lomb was falsely advertising a new contact lens as safer for extended wear than our client’s ACUVUE® lens. 
  
  
• Ferndale v. AstraZeneca, in which we prosecuted claims by AstraZeneca to enjoin a competitor from making false claims about AstraZeneca’s topical anesthetic product. 
  
  
• The Clorox Company v. Procter & Gamble, in which we defended a suit brought by The Clorox Company to enjoin P&G’s advertising for Tide® with Bleach. 
  
  
• Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., in which we prosecuted claims by Johnson & Johnson to enjoin a contact lens seller from making certain claims under the Lanham Act and multiple state law provisions across the country. 
  
  
• Bristol-Myers Squibb/Sanofi v. Bayer Corporation, in which, on behalf of Bayer Corporation, we defeated in substantial part an application for injunctive relief directed at advertising for Bayer Aspirin’s therapeutic effect on patients suffering from cardiovascular ailments. 
  
  
• Frito-Lay v. Procter & Gamble, in which the court denied Frito-Lay’s motion for a preliminary injunction addressed to P&G’s advertising for Pringles®. 
  
  
• Bell Atlantic Corp. v. ATT Corp., in which the court denied as moot Bell Atlantic’s preliminary injunction motion after ATT ceased its offending conduct following commencement of the litigation. 
  
  
• Mobius Management Systems v. Acartus and EMC, an action we prosecuted to enjoin false claims by a software competitor of our client. 
  
  
• Mobius Management Systems v. Fourth Dimension Software, a landmark decision concerning the scope of the Lanham Act in which we recovered treble damages on behalf of our client, a software firm. 
  
  
• Mobius Management Systems v. Quest Software, another action we successfully prosecuted to enjoin false claims made by a software competitor of our client. 
  
  
• Johnson & Johnson Vision Products v. The Contact Lens Supply Co., in which we obtained a temporary restraining order enjoining defendants from making false and disparaging statements about the safety of our client’s ACUVUE® contact lenses. 
  
  
• Burroughs-Wellcome v. Richardson-Vicks, in which we obtained a favorable settlement of a challenge to Richardson-Vicks’ advertising for its cold medicine. 
  
  
• Tropicana v. Citrus World, in which we defended a suit brought by Tropicana to enjoin advertising for Citrus World’s Florida’s Natural® orange juice.

Kramer Levin also regularly represents advertisers in challenges before the National Advertising Division (NAD) of the Better Business Bureau and the National Advertising Review Board (NARB). Some of our recent NAD and NARB matters include: 

• We secured a complete win for our client McNeil-PPC, Inc., a subsidiary of Johnson & Johnson, in a NAD challenge to Schering-Plough's advertising for its Claritin RediTabs product. NAD recommended that the challenged commercial be permanently discontinued and that in future advertising, Schering-Plough avoid imagery and claims that falsely communicate that its product provides very fast, nearly instantaneous allergy relief.
  
  
• We achieved a victory for our client The Dannon Company, manufacturer of ACTIVIA® probiotic yogurt, in a NAD challenge to General Mills’ advertising for its Yoplait Yo Plus™ yogurt. NAD found that General Mills lacked adequate substantiation to claim that its product helped to regulate digestive health, and thus recommended that General Mills discontinue this claim. NAD also found that comparative and superiority claims made against ACTIVIA® were not substantiated and recommended that they be discontinued. 
  
  
• We represented Johnson & Johnson Vision Care, manufacturer of ACUVUE® contact lenses, in a NAD challenge to Bausch & Lomb, Inc.’s advertising for its PureVision contact lenses. NAD determined that Bausch & Lomb lacked adequate support for its comparative superiority claims against ACUVUE® lenses, and recommended that they be discontinued. 
  
  
• We defended Johnson & Johnson Vision Care’s television advertising for ACUVUE® Advance® for Astigmatism contact lenses in a challenge commenced by Bausch & Lomb, Inc. NAD found that our client provided a reasonable basis for several of the challenged claims, and recommended modest recommendations to others. 
  
  
• We represented McNeil-PPC, Inc., a subsidiary of Johnson & Johnson, in a NAD challenge to Pfizer Inc.’s advertising for its Maximum Strength Zantac® 150 heartburn medication. NAD determined that consumers could reasonably take away the message from Pfizer’s advertising that Zantac® 150 works almost immediately, and that this implied message was not supported by the evidence. Consequently, NAD recommended that the commercial be discontinued. 
  
  
• We successfully defended advertising by Johnson & Johnson for its hydrocortisone cream Cortaid® Advanced in a NAD challenge commenced by Pfizer Inc. NAD found a reasonable basis for the claim that Cortaid® Advanced is the “longest lasting hydrocortisone cream you can get without a prescription” and rejected Pfizer’s challenge in its entirety. 
  
  
• We represented P&G in an appeal before the NARB of a challenge brought by Kimberly Clark to advertising for P&G’s Always® Thin Ultra Pads with Wings, which resulted in a rare reversal by the NARB Panel of the NAD’s prior decision. 

Kramer Levin has also defended several major consumer class actions alleging violations of state consumer fraud laws based on allegedly false advertising. For example, we represented our client Johnson & Johnson Vision Products in defending against a consumer class action concerning ACUVUE® brand contact lenses.

Finally, Kramer Levin lawyers regularly author articles on advertising law and the Lanham Act in legal publications and speak on expert panels and symposiums on advertising law.