Neutrogena Gets Another Chance, In Sunscreen "Battle Royale"

So -- it turns out that J&J's Neutrogena unit will be allowed, by the very able Delaware federal District Court Judge Sue L. Robinson, to offer additional evidence that it defines Helioplex^® -- a proprietary ingredient in J&J sunscreens -- in a way that is broader than simply detecting the presence or absence of DEHN, a chemical that New Merck, as successor to Schering-Plough's Coppertone unit, claims was omitted from "Helioplex-labeled" products (allegedly creating a literally false advertising claim, under the federal Lanham Act).

Having read all the pleadings now available in the public record (which excludes a large volume of material filed under seal, in this case, presumably on trade secret grounds), I agree that the original inquiries the able judge made were likely too narrow, given the fluid way in which the term "Helioplex" is actually used by Neutrogena. And so, from her ruling today:

. . . .Mindful that the sunblock-purchasing season was nearly (or already) underway, in lieu of a response, the court ordered defendant to respond to several direct questions relevant to the court's inquiry. . . .

[Defendant Neutrogena answered the questions; the Court ruled against the Defendant. Defendant made a motion to reconsider.]

. . . .In this regard, defendant argues that "Helioplex"^® has also been defined to the public as "a breadth of stabilized sunscreen technologies that deliver superior UVNUVB protection" without specific reference to DEHN. (D.I. 18 at 5-6, n.1) It is not clear that this specific advertisement was before the court prior to its grant of partial summary judgment. Insofar as the court's prior order limited defendant's response to plaintiffs motion, the court will allow defendant to put forward its evidence that its representations that the 100+ Product contained Helioplex® during the period at issue were not false on their face. Relevant documents may be attached as exhibits to defendant's submission. . . .

We'll keep you all slathered in these competing product-charges and counter-charges -- and probably will do so, all summer long.