Fourth Circuit Upholds $13.5m Private Brand Judgment

Private Brand manufacturer Perrigo said yesterday that an appeals court has upheld a ruling that national brand Enfamil formula maker Mead Johnson made false advertising claims against PBM, Perrigo’s Private Brand infant formula business.

In December 2009, a jury awarded PBM $13.5 million in damages against the rival baby formula maker over false advertising over the nutritional value of its product. PBM’s formula is sold at Walmart, Sam’s Club, Target, Kroger and Walgreen. Perrigo said the money will go to PBM founder Paul B. Manning.

PBM had sued Mead Johnson over ads that claimed “only Enfamil LIPIL is clinically proven to improve brain and eye development.” LIPIL is what Mead calls two types of fats that are believed to aid child development. PBM said in its suit that its formula contains the same fats in equal or higher amounts and that it gets the fats from the same supplier as Mead.

Perrigo said Thursday that the U.S. Court of Appeals for the Fourth Circuit upheld the previous lower court’s decision to issue an injunction against Glenview, Illinois based Mead Johnson to bar it from making similar claims, and award damages.

“The Court has made it clear that national brand and store brand suppliers are entitled to fairly compete and advertising abuses will not be tolerated,” said Perrigo Chairman and CEO Joseph C. Papa in a statement. “We also appreciate the Court’s recognition that PBM could lawfully compare its products to national brand products.”

Mead Johnson said it disagrees with the trial court’s decision, but is complying with the ruling and has not used the proscribed language in more than a year.

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Christopher Durham
Christopher Durham is the president of My Private Brand and the co-founder of The Vertex Awards. He is a strategist, author, consultant and retailer who built brands at Delhaize-owned Food Lion, and lead strategy and brand development for Lowe’s Home Improvement. He has consulted with retailers around the world on their private brand portfolios including: Family Dollar, Petco, Staples, Office Depot, Best Buy, Metro (Canada), TLW (Taiwan) and Hola (Taiwan). Durham has published five definitive books on private brands, including his first book, Fifty2: The My Private Brand Project. In 2017, he will debut his newest book, Vanguard: Vintage Originals, a visual tour of innovation and disruption in private brand going back to the mid-1800’s. Dynamic in his presentation while down to earth and frank in his opinions, he has presented at numerous conferences, including FUSE, The Dieline Conference, Packaging that Sells, Omnishopper and PLMA’a annual trade show in Chicago. Durham lives in Charlotte, NC with his wife, Laraine, and two daughters, Olivia and Sarah.