Wyeth Pharmaceuticals (Asia)

Case:

Key Words:

α lactalbumin, no burden on infants' digestion, acid test, scientific basis, untrue advertisement

Reference:

Fair Trade Commission Decision of December 7, 2006 (the 787th Commissioners' Meeting); Disposition (95) Kung Ch'u Tzu No. 095165

Industry:

Dairy Products Manufacturing (0850)

Relevant Laws:

Article 21 of the Fair Trade Law

Summary:

1. Wyeth Pharmaceuticals (Asia) (hereinafter called "Wyeth") was complained for violating the Fair Trade Law by disseminating the "'Acid Test Result' Training Information" which claimed that the "S-26 Gold Formula" contains α lactalbumin which forms very fine curds and causes no burden on an infant's digestion. On the other hand, the information indicated that the formula of Wyeth's competitor, "Abbott Similac Advance Infant Formula" and "Abbott Similac Infant Formula", contain casein which forms larger curds that are more difficult for infants to digest to express the idea that Abbott's formula has a certain degree of difference from breast milk.
2. The origin of the "'Acid Test Result' Training Information" was the photos and descriptions regarding the acid test results of adding vinegar to S-26 Gold formula, Abbott Silimac Advance Infant Formula, and Abbott Similac Infant Formula. Wyeth's salespersons used the abovementioned information in their briefs represented at its mother classroom and diagramed the same at the hospitals to disseminate such information. Since the non-specific or relevant public was able to learn about the messages contained in such information, it was determined that Wyeth employed a way making known to the public as prescribed in Article 21 of the Fair Trade Law.
3. According to the materials provided by Wyeth: The research report by Professor Hsieh, Ming-Cheh of Taipei Medical University shows that Wyeth's infant formula forms smaller curds than other formulas sold by other companies in the market; and in the book "Essentials of Nutrition" written by Professor Huang, Po-Chao of the Biochemistry Graduate School of Taipei Medical University and Associate Professor Yo, Su-Ling of National Taipei College of Nursing provides that "lactalbumin is easier for infants to digest," "curds formed from breast milk are fine and soft while those from cow milk are bigger and hard which are not suitable for infants." However, these materials did not mention that infants would have no digestion problem if they took infant formula that forms fine curds. As for the statement that "Breast milk contains more α lactalbumin than cow milk; and breast milk contains no β-lactoglobulin but cow milk does," the Department of Health, Executive Yuan, forwarded it to Taiwan Pediatric Medical Association for its professional opinions. It was determined that lactalbumin forms fine curds but currently no medical evidence proving that lactalbumin causes no burden on an infant's digestion. In other words, the lactalbumin in breast milk is different from that in cow milk. Cow milk contains large amount of β-lactoglobulin which can easily cause infant to be allergic to such lactalbumin and damage an infant's digestion system. Since Wyeth employed the size of curds formed by its formula containing lactalbumin as its important training contents for its trainees, Wyeth should not avoid providing a complete and truthful representation regarding the subject matter. Without other constructively explanation about the definition of "burden," the advertisement in question could easily mislead consumer into believing that their infants would not have any digestion issues by using "S-26 Gold Formula." Moreover, Wyeth claimed that "no burden" was only a general term but could not provide any medical or scientific proof to support its aforesaid claim. Therefore, the contents of the advertisement are determined to be false, untrue and misleading representations and violate Article 21(1) of the Fair Trade Law.
4. After taking into account Wyeth's revenue, motive, degree of damage to trading order, expected improper benefits, duration of the actions, and remorse shown after the violation, the FTC ordered Wyeth to immediately cease such unlawful act and imposed an administrative fine of NT$ 440,000 in accordance with the forepart of Article 41 of the Fair Trade Law.

Appendix:
Wyeth Pharmaceuticals (Asia)'s Uniform Invoice Number: 23984410

Summarized by Lai, Mei-Hua; Supervised by Shen, Li-Yu