Thursday, May 17, 2007

consumer protection - drug/medical/dental ads

Commonwealth v. Peoples Benefit Services - Commonwealth Court - May 14, 2007

The Attorney General sued PBS for consumer protection violations, alleging that PBS ads could confuse or mislead consumers into believing that PBS and its goods/services are government related, in violation of the CPL, 73 P.S. sec. 201-1 et seq.

The Commonwealth's request for a preliminary injunction was denied, even though the judge who heard the case found that PBS designed its campaign with the intent to take advantage of confusing changes to Medicare Part D and the PBS deliberately attempted to "push the envelope" with its marketing materials. The Court in this opinion denied both parties' request for summary judgment, finding that there were still unresolved issues of material fact.

However, the court set out some important CPL principles, including that an act/practice is deceptive or unfair it is has the capacity or tendency to deceive. Neither the intention to deceive nor an actual deception must be proved. Rather it need only be show that the acts/practices are capable of being interpreted in a misleading way. The test for the court is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied in the ad or solicitation. The CPL is to be construed liberally to effectuate its objective of protecting consumers from fraud and unfair or deceptive business practices.