Commission may seek corrective advertising
Contrary to its advertising claims, there is no evidence that Doan’s pills are better than competing over-the-counter analgesics in relieving back pain, according to Federal Trade Commission charges announced today against Ciba-Geigy Corporation and CIBA Self-Medication, Inc. (“Ciba”), the marketers of Doan’s. The FTC indicated that, if it concludes after trial that a cease and desist order is inadequate to protect consumers, it may require Ciba to disseminate corrective advertising or other affirmative disclosures. Ciba’s advertising agency, Jordan, McGrath, Case & Taylor, Inc., of New York City, has agreed to settle FTC charges in connection with its role in some of the challenged advertising.
“Ciba’s longtime advertising message -- that Doan’s pills are more effective than other analgesics such as Advil or Aleve for back pain -- supports its substantially higher price,” said Jodie Bernstein, Director of the FTC’s Bureau of Consumer Protection. “But, we are alleging, the company just does not have the evidence to back up its claims of superiority.”
Doan’s is an over-the-counter pain reliever containing the active ingredient magnesium salicylate. It has been on the market for more than 60 years and has been promoted as a back pain remedy. The FTC complaint detailing the charges in the case names Ardsley, New York-based Ciba-Geigy, which acquired the Doan’s line in 1987, and its subsidiary, CIBA Self-Medication, which took over the product line in December 1994 and is based in Woodbridge, New Jersey. Ciba-Geigy is owned by a Swiss company and sells more than $4 billion worth of pharmaceuticals and other products annually. It markets such over-the-counter products as Desenex antifungal medication, Sunkist vitamins and Acutrim appetite suppressants, as well as Doan’s. The case will be heard by an administrative law judge.
Advertisements cited in the FTC’s complaint against Ciba show packages of Doan’s and other pain relievers and contain statements such as:
- “Doan’s is made for back pain relief with an ingredient [other] pain relievers don’t have. Doan’s makes back pain go away. ... The Back Specialist.”;
- “If nothing seems to help, try Doan’s. It relieves back pain no matter where it hurts. Doan’s has an ingredient these pain relievers don’t have.”; and
- “Back pain is different. Why use these pain relievers? Doan’s is just for back pain.”
Through these and similar statements, the FTC alleged, Ciba claimed that Doan’s analgesic products are more effective than other analgesics, including Advil, Aleve, Bayer, Motrin and Tylenol, for relieving back pain. The FTC also alleged that Jordan, McGrath made this claim in two television ads it produced for Ciba. But the respondents do not have substantiation for this claim, the FTC charged. According to the Ciba complaint, these and similar ads have been used for at least eight years.
The order the FTC is seeking in this case against the Ciba respondents would prohibit them from making the claim alleged in the complaint unless they have competent and reliable scientific evidence, consisting of at least two clinical studies, to support the claim. In addition, the order would require these respondents to have scientific substantiation for any claim they make regarding the efficacy, safety, benefits or performance of any over-the-counter analgesic they market. Jordan, McGrath has agreed to abide by similar provisions relating to the advertising of over-the-counter internal analgesics, under the settlement it has signed with the FTC.
The FTC said it also may require the Ciba respondents to conduct a corrective advertising campaign or make other affirmative disclosures. According to previous FTC cases, corrective advertising may be ordered when the deceptive advertisements create false beliefs about a product that would linger on after the advertising ends. The precise nature of any such corrective order would be based on the litigation record in the case.
The Commission vote to issue the complaint and proposed order in the Ciba case was 4-1, with Commissioner Mary L. Azcuenaga stating: “Although I have reason to believe that the respondents have violated Section 5 of the Federal Trade Commission Act as alleged in the complaint, I dissent on the ground that, because the case could have been settled on satisfactory terms, it is not in the public interest to litigate.” The case will be scheduled for trial before an administrative law judge, who thereafter will issue a decision and order.
The vote to announce the proposed consent agreement in the Jordan, McGrath case was 5-0. The consent will be published in the Federal Register shortly and will be subject to public comment for 60 days, after which the Commission will decide whether to make it final.
Comments should be addressed to the FTC, Office of the Secretary, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580.
NOTE: The Commission issues a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The issuance of a complaint is not a finding or ruling that the respondent has violated the law. The complaint marks the beginning of a proceeding in which the allegations will be ruled upon after a formal hearing. A consent agreement, on the other hand, is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $10,000.
Copies of the complaints, proposed order, proposed consent agreement and Commissioner Azcuenaga’s statement are available from the FTC’s Public Reference Branch, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580: 202-326-2222; TTY for the hearing impaired 1-866-653-4261. To find out the latest news as it happens, call the FTC’s NewsPhone at 202-326-2710. FTC news releases and other documents also are available on the Internet at the FTC’s World Wide Web Site at http://www.ftc.gov
FTC File Nos.:
Ciba-- 952 3272
Jordan, McGrath -- 962 3053
Office of Public Affairs,
Bureau of Consumer Protection,