Court Allows Deceptive-Ad Ruling to Stand

WASHINGTON —  The Supreme Court today let stand a ruling that the maker of Bayer aspirin and other pain relievers engaged in deceptive advertising.

The court, without comment, rejected a challenge by Sterling Drug Inc. of New York to a Federal Trade Commission order banning some ads.

The U.S. 9th Circuit Court of Appeals in San Francisco last August upheld the commission’s order that advertisements for Bayer and two other products, Cope and Midol, were misleading.

The appeals court said there was adequate evidence to support the commission’s findings that stemmed from a 1973 complaint against the drug company.

The commission said Sterling Drug misrepresented that Bayer and Cope were scientifically proven to be superior to other pain relievers. Also, the commission said ads for Midol--used to relieve menstrual pains--were misleading because they suggested that the product did not contain aspirin but rather some “unique” ingredient.

The ads for Bayer were part of a major campaign by Sterling Drug that began in the mid-1960s as the product lost its market leadership among pain killers. From 1967 to 1973, the company spent $118.5 million on television ads for Bayer.

Some ads claimed that Bayer proved superior in scientific tests that compared the product to 220 other brands.

The commission said Sterling, which conducted the tests itself, lacked substantiation to make such a claim.

The commission said the claims only could be proved by well-controlled clinical tests.

In upholding the commission ruling, the appeals court said that, if the drug company “prefers not to undertake the burden of establishing the truth of its claims, it need only refrain from claiming its products have been proven to be superior.”

The ads have been off the air since 1973.