‘Compare to’ Claim Upheld as Fair

Perrigo Co. announced in a news release that a federal jury ruled in its favor in an unfair competition lawsuit by declaring that “Compare and Save” statements on generics do not constitute false or misleading labeling practices. Perrigo manufactures generic-brand versions of a joint flexibility supplement, which are sold under commercial names in chain stores like Walgreens and Wal-Mart. The labeling on those products recommends consumers compare the Perrigo product to Rexall Sundown’s Osteo Bi-Flex, the original, more expensive version. Rexall sued Perrigo, claiming Perrigo’s generic version of the product, with its suggestion to compare, unfairly hindered sales of Osteo Bi-Flex and infringed upon its patent. The jury disagreed, according to Perrigo, by saying consumers are not misled by invitations to compare competing products, nor is the practice unfair. “Compare to” claims are legal as long as they are truthful and non-misleading. In fact, FTC actually encourages comparative advertising; see FTC’s Statement of Policy Regarding Comparative Advertising for more information.