Contracts can last longer than headaches: 1990 consent decree bars comparisons today

Pfizer Inc. v. McNeil-PPC, Inc., 183 F. Supp. 3d 491
(S.D.N.Y. 2016)
A twenty-six-year-old consent decree resolving false
advertising claims bans certain comparisons between Advil (Pfizer) and Tylenol
(McNeil). Several years after the decree’s entry, Pfizer introduced Advil
products designed for children and infants. The court determined that the
consent decree barred claims comparing the newer Advil products to Tylenol.
The initial lawsuits involved both parties’ comparative
claims about Tylenol and Advil’s side effects and safety, as well as Advil ads
that claimed, “Like Tylenol, Advil doesn’t upset my stomach.” Am. Home Products
Corp. v. Johnson & Johnson, 654 F.Supp. 568 (S.D.N.Y.1987) (Advil I);
McNeilab, Inc. v. Am. Home Products Corp., 675 F.Supp. 819 (S.D.N.Y.1987)
aff’d, 848 F.2d 34 (2d Cir.1988) (Advil II).  The relevant consent judgment enjoined
Pfizer’s predecessor (and Pfizer, as a party in privity) from “stating in words
or substance in any advertisement that ADVIL is ‘like TYLENOL’ in the respect
of adverse effects on the stomach ….”
After signing that order, Pfizer’s predecessor conducted a
study titled the Children’s Analgesic Medicine Project. The CAMP study compared
the safety of Advil’s active ingredient, ibuprofen, and Tylenol’s active
ingredient, acetaminophen, in over 41,000 children suffering from fever and
pain, over 14,000 of whom were infants under the age of two.  The parties now disputed the meaning of the
word “ADVIL” in the order. Pfizer argued that it meant only the 200 milligram
adult Advil tablet on the market at time the order was drafted, allowing Pfizer
to run comparative stomach safety advertisements for pediatric Advil products.
McNeil argued that the order covered all Advil products that contain the drug
ibuprofen, including pediatric Advil.

Consent decrees are contracts, and interpreting them is a matter of ordinary
contract interpretation, which allows consideration of documents expressly
incorporated in the consent judgment, as well as of extrinsic evidence of the
parties’ intent where a term is ambiguous. 
However, “because consent decrees are normally compromises in which the
parties give up something they might have won in litigation and waive their
rights to litigation, it is inappropriate to search for the ‘purpose’ of a
consent decree and construe it on that basis.”
On its face without including incorporated documents, the
order was ambiguous: “ADVIL” could plausibly mean all Advil products, including
later-created ones.  The order contained “no
limitation on the word Advil or reservation of rights in relation to specific
dosages or variations of Advil products.” Still, it was also plausible to read
the order as limited to the “ADVIL” that existed at the time of drafting.  However, the court concluded that the Advil
II order incorporated the opinions from the Advil I and Advil II cases.  Given that incorporation, the order
unambiguously included all Advil products whose active ingredient is
ibuprofen.  The Advil I opinion spent a
lot of time discussing the side effects caused by the products’ active
ingredients, not just the brand name/specific formulation: the Advil I findings
were findings about ibuprofen the drug. 
The Advil II court then equated “ADVIL” with ibuprofen. Because the
Advil II court used “Advil” and “ibuprofen” interchangeably, the court here
found that the term “Advil” “encompasses not just the specific Advil products
contemporaneously on the market, but any Advil product whose active ingredient
is ibuprofen.”
McNeil’s interpretation didn’t expand the plain meaning of
the word Advil to include all Advil products that contain ibuprofen: it was the
plain meaning. Plus, allowing Pfizer to interpret the order to include only 200
milligram adult Advil, which was what was on the market at the time, “would
make it virtually meaningless, because it would allow Pfizer to escape its
application merely by manufacturing and selling slightly modified versions of
the 200 milligram tablet.”

Nor did the language of the consent decree in Advil I change
things: that consent decree included broad language that enjoined Pfizer from
making certain advertising claims related to “Advil, any other ibuprofen
products, or ibuprofen in general.”  But,
even if extrinsic evidence could be considered, that language referred to a
specific claim that “ibuprofen interacts with fewer drugs than acetaminophen or
that ibuprofen is comparable or superior to acetaminophen with respect to
adverse drug-drug interactions.” And the Advil II court later used the terms
Advil and ibuprofen interchangeably with respect to that claim.

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