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FTC orders corrective ads over pain reliever claims

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  1. Prior Restraint
WASHINGTON, D.C.--For the first time in 24 years, and only the second time in its 85-year history, the Federal Trade…

WASHINGTON, D.C.–For the first time in 24 years, and only the second time in its 85-year history, the Federal Trade Commission ordered a company to run corrective advertising to remedy past misleading claims.

In late May, the FTC ordered the Novartis Corporation, the world’s second-largest drug manufacturer, to spend $8 million over the next year to correct the public’s misconception — caused by advertising claims made by the manufacturer — that Doan’s Pills are more effective than other over-the-counter pain relievers in alleviating back pain.

The order states that a disclaimer must appear “clearly and prominently” in any advertising for Doan’s Pills, as well as on the packaging. The disclaimer must state: “Although Doan’s is an effective pain reliever, there is no evidence that Doan’s is any more effective than other pain relievers for back pain.”

The pills are made primarily of magnesium salicylate, an analgesic pain reliever, and do not contain aspirin, ibuprofen, or acetaminophen.

The commission charged that Novartis used misleading advertising for its pain reliever between 1988 and 1996. During those years, advertisements compared Doan’s Pills with other over-the-counter pain relievers and made 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.”

The FTC found there was no evidence that Doan’s Pills were better at relieving back pain than other analgesics.

In mid-March, an administrative law judge upheld the FTC charges that the advertisements were unsubstantiated and false, but refused to order corrective advertising.

Both Novartis and the FTC appealed the administrative law judge’s decision to the full commission. Novartis claimed it never made unsubstantiated claims for Doan’s Pills.

All four commissioners agreed that the Doan’s advertisements were misleading, but only three of the four approved the corrective advertising remedy. Commissioner Orson Swindle dissented from the advertising order because he believed the order infringed on the company’s First Amendment free speech rights and because he saw insufficient evidence of a lingering effect of the misleading advertisements.

Novartis said it will appeal the order to a federal appeals court. (In the Matter of Novartis Corp.)