McNeil, Bayer Aleve Ad Dispute Heats Up With Federal Lawsuit

McNeil Consumer & Specialty Pharmaceuticals' has taken its dispute with Bayer Consumer Care over advertising for Aleve to court, after a NAD decision apparently failed to resolve the conflict.

In an complaint filed Aug. 1 in Newark, N.J. federal court, Tylenol marketer McNeil maintains a recent Aleve TV commercial falsely suggests the analgesic "relieves more severe pain or relieves pain more effectively than" Tylenol.

McNeil recently brought similar complaints before the National Advertising Division of the Council of Better Business Bureaus, which agreed that several "Dear Aleve" TV and print ads contained unsubstantiated comparative efficacy claims with Tylenol and suggested Bayer modify future ads (¹ (Also see "Aleve/Tylenol Comparative Dosing Tagline Inapplicable For Headaches – NAD" - Pink Sheet, 15 Jul, 2002.), p. 4).

Although Bayer had said it would "take full account of NAD's conclusions in creating new advertising," McNeil asserts in its lawsuit that an Aleve commercial that debuted June 25 continues to make unsubstantiated comparative efficacy claims.

"Bayer's current commercial is not materially different from the commercials that NAD said were misleading," the complaint says.

"Like the prior commercials in the series, Bayer's new commercial features an older gentleman who likes to play baseball," McNeil says. The man is depicted as suffering from pain "so severe that he is unable to walk normally, and requires assistance from his teammates," the lawsuit states.

After reporting that "nothing I tried worked long enough, 'til my doctor told me about Aleve," the man claims "two Aleve can stop pain all day long. [My doctor] said it would take eight Tylenol to do that." He then concludes that because of Aleve, "now I can spend all day playing the game I love."

McNeil's lawsuit contends the commercial "clearly conveys more than just a convenience message," which the firm says is the only difference between Aleve and Tylenol. While Tylenol's directions advise taking two tablets every four to six hours, labeling for Aleve recommends taking one tablet every eight to 12 hours.

"McNeil would have no objection to Bayer's truthful promotion of Aleve's comparative convenience in those situations in which pain typically lasts longer than" four to six hours, the complaint states.

However, "Aleve's dosing advantage, in the context of the scene depicted in the [baseball] commercial, would be either non-existent or de minimis," McNeil says.

This is because, "contrary to the clear meaning of the commercial, no one would need to take 'eight Tylenol' to stay in the game, since no one would play baseball for an uninterrupted period of 24 hours," the complaint maintains.

Moreover, "the vast majority of users would be unlikely to play for as long as" four to six hours, McNeil continues. "Because Aleve and Tylenol are equally effective, the gentleman depicted in the commercial would experience comparable pain relief using either product."

As a result, McNeil acknowledges "consumers with persistent pain may need to medicate more frequently with Tylenol than with Aleve but, with regard to pain relief, there is no other difference. The dramatic, life-transforming difference portrayed in Bayer's advertising is false and misleading."

The "false advertising and deceptive trade practices" have caused McNeil to be "severely and irreparably injured," the complaint contends. Consumers additionally "are being duped and misled" to believe Aleve is more effective than Tylenol, it states.

McNeil requests that Bayer be "temporarily, preliminarily and permanently enjoined" from airing the challenged Aleve commercial, making any comparative efficacy claims with Tylenol and claiming that eight Tylenol tablets are needed if a "pain state" would not last for 24 hours.

McNeil also asks that the court direct Bayer "to disseminate corrective advertising, in a form to be approved by the court, to remedy any misunderstanding its advertising has caused among consumers."

The Tylenol marketer further requests that the court declare the action "an 'exceptional case' due to the willful and repetitious nature of Bayer's false advertising" and award McNeil reimbursement for attorney's fees and the full costs of bringing the case to court.