Be careful how you train your sales reps, especially when it comes to uniform marketing messages
The mere fact that a company has trained its sales representatives to express uniform marketing messages does not, on its own, mean that all its oral marketing communications included false or misleading statements, a court said in a recent case.
Since the late ‘90s, Johnson & Johnson, Ethicon, Inc., and Ethicon US, LLC – the defendants in the case of The People of the State of California v. Johnson & Johnson et al. – have manufactured, marketed and sold pelvic mesh products. These products are meant to treat stress urinary incontinence and pelvic organ prolapse, two conditions that can affect women.
In 2016, the attorney general brought an enforcement action against the defendants on behalf of the People of the State of California. The complaint claimed that the defendants breached the Unfair Competition Law (UCL) and the False Advertising Law (FAL) by disseminating deceptive advertisements for their pelvic mesh products via their instructions for use (IFUs) and via their marketing communications directed to doctors and patients in California.
The trial court concluded that the defendants wilfully circulated misleading medical device instructions and oral and printed marketing communications that misstated, minimized and/or omitted the products’ health risks. The defendants were imposed a $1,250 civil penalty for each of 153,351 violations of the UCL and for each of...
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