"It's unusual where industry regulation does not work," said Carla Michelotti, senior VP of Leo Burnett USA, Chicago, and chairman of the government affairs task force of the American Advertising Federation.
Also, rarely have cases involved legal precedents, said a spokeswoman for the industry's self-regulation arm, the National Advertising Division of the Council of Better Business Bureaus, which referred the case to the government (AA, April 29).
She said NAD refers about three cases annually to the FTC, though never before has such a case involved major marketers.
J&J refused to take part in the process citing a 1987 court case, saying it settled the matter challenged by American Home.
The current J&J/American Home case involves a TV spot for Extra Strength Tylenol, created by Saatchi & Saatchi Advertising's Healthcare Connection, New York. The spot shows two truck drivers discussing how ibuprofen can aggravate an ulcer, and pictures Advil. The agency said the spot stopped running in March.
The case J&J cited also addressed the claim about ibuprofen and ulcers.
"We feel the court decision provides more than adequate substantiation for the claim," said a J&J statement. "We also believe that the voluntary, non-judicial process of NAD is not the appropriate forum in which to overturn the order of a court."
The comparative claims between the two marketers reached a point where all major TV networks ceased running certain of their spots and ABC issued a blanket decision to stop carrying any type of comparative drug advertising.
If J&J is dissatisfied with whatever decision the FTC reaches, it could have the option of taking that ruling to court.
Contributing: Ira Teinowitz