Last month, The Public Health Advocacy Institute (PHAI) filed a complaint with the FTC alleging that Merck & Company’s marketing of its pediatric Claritin® products violate FTC precedent concerning promotional campaigns directed toward children.

The promotion in question concerns OTC pediatric Claritin® and characters from the recent Dreamworks film, Madagascar 3.

The marketing campaign involves packaging, advertising, promo movie tickets, games, activity guides, and social media.

According to the complaint, Dreamworks licensed its Madagascar characters to “at least 15 major companies,” affiliating it with brands such as Dole, Airheads, Blue Bunny, Sun-Maid, Betty Crocker, and McDonald’s.

PHAI’s complaint asserts:

• The affiliation of Madagascar characters “creates a situation whereby children may perceive Grape-Flavored Children’s Claritin chewable tablets and syrup as candy;” and
• “The Madagascar campaign for Children’s Claritin may induce children to request Merck’s brand-name OTC drug” and feign symptoms “to get medicine perceived to be candy.”

PHAI relies upon a consent decree that followed FTC’s 1977 complaint against Hudson Pharma. Corp.

Hudson advertised its children’s OTC supplements using a “Spiderman” character endorsing the product on the children’s TV show, “The Electric Company,” featuring “Spidey.”

The FTC alleged children would be unable to distinguish between the show’s Spidey character and Spiderman, the endorser of Hudson’s vitamins.

Finally, FTC charged advertising to children would induce them to take excessive amounts of vitamins causing injury. The case settlement before trial.

Claritin® advertising was previously challenged by a public interest group.

In 2001, New Jersey Citizen Action sued Schering (n/k/a Merck) after it launched its first direct to consumer advertising campaign featuring Cole Porter’s “Blue Skies.”

The group claimed unconscionable advertising practices that promulgated false and deceptive assertions. See New Jersey Citizen Action, et. al. v. Schering-Plough Corporation, et. al. Complaint.

The trial court granted Schering’s Motion to Dismiss which was affirmed by the appellate court. The N.J. Sup. Ct. denied cert.

Source: PHAI’s June 20, 2012 Letter to FTC

This article was prepared by Bob Rouder (rrouder@fulbright.com / 512 536 2491) of Fulbright’s False Advertising Practice.