I. The Attitude & Usage Study
After acquiring the Doan's brand, Ciba wanted to gain a better understanding of the backache category and engaged Arbor, Inc. to conduct an Attitude & Usage Study ("A&U"). CX 221. The specific goals of the 1987 A&U study were to determine awareness and use of Doan's user profiles, brand perception, and reactions to a new Doan's concept.(1) CX 221-h. A total of 390 telephone interviews were conducted.(2) Almost all respondents were aware of Doan's. CX 221-t. Despite Doan's high brand and advertising awareness, Doan's has been tried by less than one third of backache sufferers. CX 221-v.
In the portion of the study relating to brand perception, one question asked the respondents to rate the brands they were aware of on 14 different attributes. One of the attributes listed was: "Is the most effective pain reliever you can buy for backaches." CX 221-x. The results for this question show that on mean values, Doan's was at 4.4, which was third after Extra-Strength Tylenol, 5.1, and Advil, 4.8. Bayer was fourth at 4.2. CX 221-z-72.
A summary memorandum from the Ciba consumer research department regarding the A&U study to Hal Russo, a member of the marketing department, described the results of the study by saying:
Overall, Doan's competes in a broad arena, dominated by general purpose analgesics. Doan's has a weak image in comparison to the leading brands of analgesics and would benefit from positioning itself as a more effective product that is strong enough for the types of backache sufferers usually get. Care must be taken in positioning the brand as efficacious so that Doan's is not perceived to be only for very bad back pain. Being seen as for only back pain appears to limit usage occasions and may cause the product to be seen as too strong for frequent use. (emphasis in the original) CX 221-c,d..
The study also noted:
STRONG ENOUGH FOR ME is the most important dimension tested and was almost twice as important as the next most important dimension GOOD VALUE. MAXIMUM STRENGTH AND SAFE are the next most important. If a brand is perceived as being for BAD PAIN ONLY, it loses on preferences. Being BACKACHE SPECIFIC is not important. (emphasis in the original) CX 221-z-7.
The study also revealed that Doan's users are more likely to claim to use Extra-Strength Tylenol more often than they are to use Doan's. CX 221-z-21.
The results of the A&U study were used to help create new Doan's advertising. The first new Doan's ad that was created and disseminated after this study was the "Graph" ad. Peabody Tr. 146.
II. Brand Equity Study
Five years later, in 1993, Ciba conducted the Brand Equity Study. CX 256. The goal of the study was to establish the current equity and brand image of Doan's and its major competitors in the backache category, to explore how the Doan's position might be optimized versus the incumbent competition, and to establish if there were any other categories where there might be an opportunity for Doan's. CX 256-f. The study was conducted via mall intercept in 10 locations. A total of 336 interviews were conducted among males and females who suffer from back pain and treat their back pain with OTC products in pill form. All of the respondents were aware of Doan's. CX 256-g.
One aspect of the Brand Equity study was to evaluate how Doan's was perceived on a set of attributes compared to other analgesics used to treat back pain. Specifically, one question listed 21 attributes and used a grid of six boxes adjacent to each of the attributes. CX 260-b. The left hand box was labeled "Unacceptable, brand couldn't be worse." The right hand box was labeled "Ideal, nothing could make brand better." In the middle, above the dividing line on the grid, was the label "Good." Respondents were asked to rate each of a group of analgesics products they were aware of for the treatment of back pain on each of the 21 attributes.
Dr. Mazis created a summary of some of the data obtained from this question because the report itself did not contain a detailed discussion of the results. The data for both users and aware non-users are presented both in terms of "top box" - the right hand box rated "ideal" -- and the "top two box" results -- the boxes to the left of "Ideal." For users of the products, about twice as many people put Doan's in the top box of being particularly effective for back pain as compared to the three all-purpose analgesics -- Tylenol, Advil, and Motrin. CX 480-a. For Doan's aware non-users, the results were also higher than for the other brands, albeit at a lower level. CX 480-c.(3)
An Executive Summary describing the study to Ciba management highlights one of the key findings as: "The brand is seen as particularly effective for back pain, and as having a special ingredient." CX 256-c.
The FY'95 Marketing Plan suggests continuing to build on Doan's heritage as "The Back Specialist." It noted that the '93 Brand Equity Study that showed the specificity of Doan's positioning as communicated by the "Back Specialist" has helped differentiate the brand from other pain relievers. It went on to note that: "Clearly this unique positioning has contributed to this as the Equity Study showed the top two attribute ratings for Doan's were ingredients especially for back pain (49%) and Effective for back pain (44%)" CX 387-y.
III. NFO Study
Dr. Mazis conducted a belief study for this litigation using National Family Opinion, Inc. ("NFO") a marketing research company which provides mail panel research.(4) Mail panel research involves mailing research instruments to individuals who have previously agreed to serve as survey respondents. These individuals then complete and return the research instrument to NFO by mail. NFO sent a screener questionnaire to 40,000 households in October 1996 to identify back pain sufferers/treaters who were Doan's users or aware non-users. CX 420-h. In December 1996, NFO conducted a follow-up survey consisting of 400 Doan's users and 400 Doan's aware non-users selected on a random basis from the larger population of both groups identified on the multi-card screening survey. CX 421-h.
Dr. Mazis concluded that users and aware non-users constituted the appropriate universe for testing beliefs because those who had never heard of the product could not have beliefs about the product. Mazis Tr. 1122. The purpose of the study was to assess beliefs on a number of attributes, but in particular, the "more effective for back pain" attribute and to compare the beliefs of users of Doan's to users of other analgesics for back pain relief, and aware non-users of Doan's to aware non-users of other analgesics.(5) Mazis Tr. 1129-30. The purpose of comparing users and aware non-users was to take into account and control for usage effect.(6) Mazis Tr. 1199-1201.
A total of 549 households returned surveys. CX 421-h. The results of the NFO belief study summarized in CX 482 show that over three-quarters (77%) of the Doan's users believe Doan's is superior. Between 41 and 62% of users of other brands reported superiority beliefs about their brands. Forty-five percent of Doan's aware non-users held a superiority belief about Doan's, whereas only 17 to 35% of aware non-users of the comparison brands believed those products to be superior to other analgesics. Dr. Mazis concluded that the data for both Doan's users and aware non-users compared to users or aware non-users of each of the five other OTC analgesic products(7) show that the level of superiority beliefs for Doan's is substantially higher than it is for any of the competing products. Mazis Tr. 1151.
Dr. Mazis also undertook an analysis of joint users and joint aware non-users of the various products in order to compare their beliefs about Doan's and their beliefs about other products. Mazis Tr. 1159. This analysis shows disproportionate percentages of both Doan's users and aware non-users believing that Doan's is more effective for back pain. For example, Dr. Mazis looked at individuals who used both Advil and Doan's and compared their beliefs about Advil to their beliefs about Doan's. On average, the proportion of joint users agreeing that Doan's is more effective for back pain than other OTC analgesics was 26% higher than those agreeing that the other brands were more effective. IDF 262, 263; Mazis Tr. 1171-74. This analysis was done for each set of products for aware non-users. On average the proportion of joint aware non-users agreeing that Doan's was more effective for back pain than other OTC analgesics is almost 20% higher than the proportion agreeing that the other brands were more effective. IDF 264, 265; Mazis Tr. 1175-76. Using a two-tailed test, Dr. Mazis calculated that all of the observed differences in the user-to-user comparison for the attribute "more effective for back pain" were statistically significant at the .05 level, as were four of the five(8) aware non-user to aware non-user comparisons for the same attribute. Mazis Tr. 1187-89. Dr. Mazis also analyzed the NFO data by applying the Bonferroni adjustment to correct for experiment-wise error. Even after making these adjustments, the results remained statistically significant. Mazis Tr. 1190-96.
IV. Aleve Tracking Study
In 1994, Procter & Gamble introduced Aleve. Weeks after introduction, Aleve became the number 3 brand with a 6.5% share of the $2.6 billion general analgesic category. RX 101-c. The advertising compared Aleve to other brands directly by name. In 1995, Ciba conducted the Aleve Tracking Study with the objective of monitoring the first year's progress of Aleve's national introduction in order to determine the impact on the OTC analgesic category generally, on major brands, and on the backache segment in particular. RX 101-d. Telephone interviews were conducted in two waves among nationally-projectable samples of those 18 years of age or older who used an analgesic product in the past year.(9) RX 101-e.
In connection with the study, Ciba obtained information about Doan's. The results of this study indicate that Doan's had between a 2 and 3% unaided brand awareness among the respondents. RX 101-t. However, on an aided basis, the results were higher at between 71 and 75%. RX 101-u.
V. Jacoby Study
Dr. Jacoby's study, conducted in late 1996, for this litigation, sought to measure both the materiality of the challenged claim as well as the beliefs created or reinforced by the Doan's campaign. Specifically, he sought to determine whether consumers exposed to the challenged Doan's advertising extracted a "more effective" claim, the basis for such a claim, and whether any such "more effective" claim was material to consumers. In addition, Dr. Jacoby also sought to determine whether there were any lingering effects of the implied superiority claim RX 5-z-82, 83. The study tested consumer beliefs first, without exposure to the challenged ads.
Dr. Jacoby's universe included 684 men and women, at least 18 years old, who in the past year had purchased, or in the past six months had used, a non-prescription medicine to relieve backache or back pain.(10) RX 5-z-85, 87. Dr. Jacoby specifically included consumers who were not aware of Doan's as long as they satisfied the other criteria. Jacoby Tr. 2936. The study was conducted via mall intercept in sixteen geographically dispersed markets, in each U.S. Census Division. RX 5-z-89.
The first three questions asked the respondents which products they had used during the past year. By aggregating the answers to these questions, the data show that 21%, or 123 respondents had used Doan's; 71% had used Tylenol; 58% Advil; 31 % Aleve; 28% Motrin; and 21% Bayer. RX 5-z-104. There is no information in the study as to what percent of the respondents were aware of Doan's. Next, respondents were asked whether certain brands were more effective. Seven percent of the 684 respondents rated Doan's as more effective, compared to 13% who reported Advil more effective, and 12% who reported that Tylenol is more effective. RX 5-z-105. When analyzing the data further, 38% of the Doan's users reported Doan's as "more effective" in contrast to 23% of Advil and 17% of Tylenol users who reported their brands as more effective. Id. The study also showed that many more respondents attributed their usage of Doan's to personal experience (42%) than to advertising (11%).(11) RX 5-z-108-09. Dr. Jacoby also asked whether the respondents recalled any advertising and what it is they recalled from the advertising. The results indicate that for Doan's users, 48% did not recall any ads and that of those who did recall advertising, 44% remember a visual about the ad, 36% mentioned relief of back pain, and 3% mentioned superiority.(12) RX 5-z-110.
VI. Whitcup Study
Dr. Whitcup's belief study was conducted, for this litigation, between February and April 1996. RX 2. It attempted to measure consumer awareness of Doan's and of Doan's advertising. Specifically, Dr. Whitcup attempted to access consumer beliefs about Doan's concerning its effectiveness for relief of back pain that may be the results of prior advertising, product usage, word of mouth, and other factors, as well as to ascertain whether or not Doan's is perceived by relevant consumers as containing a special ingredient for back pain that other OTC analgesics do not contain. RX 2-c.
There were a total of 423 respondents who were men and women aged 18 or older, who have used an OTC analgesic in pill form in the past year, taken an OTC pain reliever in the past year for back pain, and have no one in their household employed in an industry or with atypical knowledge of pain relievers. Interviewing was conducted by telephone using random digit dialing. RX 2-e. The study was administered under "double blind" conditions where neither respondents nor interviewers were aware of the identity of the sponsor nor the true purpose of the study. RX 2-g. Only 35 respondents had used Doan's RX 2-z-49. In contrast, 190 of the respondents had used Tylenol and 121 had used Advil. Id. As a result of the small number of Doan's users in this study, Dr. Whitcup added the letter "c" ("caution small base") whenever he presented data based on their responses. See eg. RX 2-q,s.
After screening for qualifications, respondents were asked a series of questions designed to measure their awareness and use of OTC analgesic brands and their advertising. RX 2-e. Specifically, the first question asked what brand of OTC pain relievers first came to mind. In response to this question 1% of the 423 respondents reported awareness of Doan's in comparison to 51 and 18% of the 423 respondents who mentioned Tylenol and Advil. RX 2-n. Other questions asked respondents to recollect which OTC pain relievers they have seen or heard ads for. No respondents reported top-of-mind awareness of Doan's advertising, in comparison to 36% and 20% who reported top-of-mind awareness for Tylenol and Advil respectively. RX 2-o. Other questions asked what brands respondents used in the past year to treat back pain. Eight percent indicated that they used Doan's in comparison to 45% and 29% who indicated that they used Tylenol and Advil respectively. RX 2-p. Finally, in response to a question asking which brands were most effective, 8% believed Doan's was more effective. RX 2-u. Dr. Whitcup acknowledged that the 8% superior efficacy belief measured for Doan's is at about the same level as Tylenol and Advil. Whitcup Tr. 2816.
VII. The Lavidge Study
The Lavidge Study was conducted from October 1996 through January 1997. RX 23-a. It was designed for this litigation with the purpose of determining both what claims the "muscles" ads conveyed and whether consumers held a belief that Doan's contains an ingredient the other products do not have. RX 23-e. The universe included people 18 - 34 years of age who had experienced back pain within the past 2 months and had taken OTC pain relievers for back pain within the past year. RX 23-f. Seventy one percent of the sample were unaware of Doan's. RX 182.
The Lavidge study was divided into three tests with a total of 750 respondents. RX 23-b. This test was also conducted under double blind conditions using a mall intercept approach in ten cities throughout the U.S. RX 23-e. The respondents were shown TV ads for four OTC products marketed for the relief of back pain -- Advil, Bufferin, Doan's and Tylenol. The Doan's ad used in Tests 1 and 3 was the challenged Muscle's ad, and the Doan's ad used in Test 2 was an unchallenged Doan's ad. Immediately after viewing the ads in Test 1 and Test 2, consumers were asked questions to evaluate the impact of the advertising on their beliefs. The Test 3 participants were asked follow-up questions 11 days later.
The study asked respondents questions about their beliefs after exposure to a clutter tape of ads which included both challenged and unchallenged Doan's ads as well as three other 15 second ads for other analgesic products promoted for back pain relief. Immediately after viewing the ads, 57% of the 499 respondents in two of the tests indicated that they did not believe that any OTC analgesic was more effective than others for the relief of back pain RX 23-j; RX 181. After exposure to the challenged Muscles ad, 5.2% of 249 respondents indicated that they believed that Doan's was more effective for relieving back pain. RX 23-j. Six percent of 250 respondents who saw the unchallenged Muscles ad believed that Doan's was more effective. RX 23-j; RX 181. In comparison, 10.6 % of the 499 respondents believed that Tylenol was more effective and 9.6% believed that Advil was more effective. Id. Of those who saw the challenged Muscle's ad and were questioned eleven days later, 3.1% believed that Doan's was more effective. Id.
1. The new concept was an extra strength product.
2. Respondents were qualified if they were 18 years or older, suffered from backaches in an average six month period, usually treat backaches with either prescription or non prescription products, and either purchase the products themselves or decide what product is to be bought. An additional 45 consumer who had used Doan's in the past six months were included in the study in order to have 75 users. CX 221-i.
3. Twenty percent of aware non-users rated Doan's top box for the attribute particularly effective for back pain, while 7.1% put Extra Strength Tylenol in the Top Box category, 5.3% did for Advil, 6.6% for Motrin IB.
4. The mail panel NFO maintains is a bank of over 500,000 households who have agreed, in advance, to participate in research projects. Clarke Tr. 9.
5. The questionnaire presented ten attribute statements and asked respondents to rate each statement on a seven-point scale, ranging from strongly agree to strongly disagree. CX 421 z-12. The list of ten belief attributes was chosen to include the belief of primary interest in this case, "Is more effective than other OTC pain relievers for back pain relief," as well as two other belief statements that tracked claims made in Doan's advertising: "Has an ingredient especially for back pain" and "Is just for back pain." Mazis Tr. 1133. The other attributes were: (1) Is just for headaches, (2) Is safe to use, (3) Has an ingredient especially for headaches, (4) Is gentle on the stomach, (5) Is effective for all kinds of pain, (6) Is more effective than other OTC pain relievers for headache relief, and (7) Is safer to use than other OTC pain relievers. CX 421-z-12. In addition, each questionnaire also asked respondents to write in their age and sex in spaces provided at the end of the questionnaire as a control procedure to guard against the possibility that the wrong member of the household completed the questionnaire. When the questionnaires were returned, NFO cross-checked this age and sex information against their records. Clarke Tr. 40.
6. The marketing phenomenon called "usage effect" is the tendency of users of a product to give the product a higher rating than non-users of the product. Mazis Tr. 992.
7. Advil, Aleve, Bayer, Motrin, and Tylenol.
8. The Motrin non-user non-user comparison was not statistically significant at the .05 level. Mazis Tr. 1189.
9. Of the respondents, between 39 and 42% had used an OTC pain reliever in the past year to treat a backache. RX 101-z-33.
10. Dr. Jacoby's universe included people who may not have suffered from back pain, but purchased the product. Dr. Jacoby reanalyzed the data after becoming aware of this fact and concluded that 95% of his survey respondents were themselves backache sufferers/treaters. Jacoby Tr. 3140.
11. Interestingly, only users of Doan's reported that advertising was the basis for their belief.
12. The ALJ stated that it was agreed at trial that the fact that respondents played back a general recall of Doan's ads, does not establish that they did not form a superiority belief from their exposure to Doan's ads. IDF 288.