Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, September 20, 1995                   TAG: 9509200044
SECTION: BUSINESS                    PAGE: B-8   EDITION: METRO 
SOURCE: JEFF STURGEON STAFF WRITER
DATELINE:                                 LENGTH: Medium

LYNCHBURG COMPANY'S LAWSUIT FORCES SMITHKLINE TO DROP ADS

SmithKline Beecham PLC can't back up nationally advertised claims that it makes a better disposable douche than a Lynchburg company, a Roanoke judge said Tuesday, and must drop the ad campaign.

SmithKline avoided being hit with an injunction by agreeing to withdraw the ads after U.S. District Judge James Turk said he doubted its central claim.

SmithKline, the British pharmaceutical and personal-care products maker, promised not to use the advertising, at least until the dispute and the question of damages are resolved at a trial.

The agreement resulted from a lawsuit filed by competitor C.B. Fleet Co. Inc. of Lynchburg. Fleet levied a false-advertising suit against SmithKline for claiming that its Massengill-brand douches are superior to Fleet's brand, Summer's Eve. Fleet sought a preliminary ruling because it feared the ads would continue to appear in a variety of newspapers across the country and on network television.

At stake is each company's share of a U.S. market worth $100 million. Both companies agree SmithKline is the leader, with about half the market. Fleet, which claims to have invented the disposable douche in 1972, holds about 27 percent.

The disputed television commercial depicts several woman in a steam room.

"You're still using the first douche you ever tried?'' one woman asks.

"So?'' another woman answers.

"So, Massengill cleans better than Summer's Eve," the first woman says.

A third woman attributes the advantage to a new configuration of the SmithKline product's nozzle.

The reference to Summer's Eve landed SmithKline in court, and there is a similar reference in printed coupons that were inserted in newspapers. Fleet said the ads caused it to lose sales and profits.

After hearing two days of testimony, largely on comparison tests, the judge said Fleet's lawyers had found enough flaws in SmithKline's ad campaign to support an injunction on the grounds of false advertising.

Although the Federal Trade Commission encourages advertising that compares products, claims made in ads must be provable.

Turk spoke up before all the evidence was in, interrupting questioning of a gynecologist who advises SmithKline.

"Any woman that sees this ad is going to be misled - is she not? - into thinking you have a greatly improved nozzle that brings about much better cleansing," the judge said.

Addressing SmithKline's lawyer, Kenneth Plevan of New York, Turk said: "This ad is misleading, and it concerns the court that your client would do that."

"We achieved our purpose," said Fleet's lawyer, Rodney Page of Washington, D.C.

Fleet has not decided whether to follow through on a request that SmithKline run new ads withdrawing its claim and pay Fleet at least $500,000 in damages, Page said.