1011-00004 · Meridian Consumer Brands LLC · Pleadings

memo-of-law-preliminary-injunction.docx DOCUMENT Litigation

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF MERIDIAN CONSUMER BRANDS LLC'S MOTION FOR A PRELIMINARY INJUNCTION

CALDERWOOD & HARKNESS LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-7800 Facsimile: (212) 555-7801

Linda Osei (Responsible Partner) Priya Anand (Billing Partner) Patrick Gallagher (Lead Associate) Simone Laroche (Associate)

Attorneys for Plaintiff Meridian Consumer Brands LLC

Dated: September 26, 2025

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TABLE OF AUTHORITIES

Cases

Statutes and Rules

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PRELIMINARY STATEMENT

Plaintiff Meridian Consumer Brands LLC ("Meridian" or "Plaintiff") respectfully submits this Memorandum of Law in support of its motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 and the inherent authority of this Court. Meridian seeks to halt an ongoing, nationwide false advertising campaign launched by Defendant Apex Naturals Inc. ("Apex" or "Defendant") — a campaign that is built on fabricated science, deceptive pricing comparisons, and demonstrably untrue product-ingredient claims, and that has already inflicted devastating and accelerating harm on Meridian's flagship skincare brand.

Meridian is a leading developer and marketer of premium skincare products, with principal offices at 410 West 34th Street, 18th Floor, New York, New York 10001. Meridian is organized as a Delaware limited liability company and is registered to do business in the State of New York. Among Meridian's portfolio of well-regarded consumer brands, the DermaTrūe acne-treatment line stands as the company's most prominent and commercially significant product offering, generating $138.2 million in revenue in fiscal year 2024 — representing 28.3% of Meridian's total annual revenue of $487.6 million. DermaTrūe has earned the trust of millions of American consumers through years of research, clinical development, and responsible marketing practices.

Defendant Apex Naturals Inc. is a Delaware corporation headquartered at 75 Commerce Boulevard, Suite 300, Parsippany, New Jersey 07054. Apex develops and sells mass-market and "clean-beauty" skincare products, including the PuraClear acne-treatment line, which generated an estimated $89.7 million in revenue in fiscal year 2024. On June 2, 2025, Apex launched a sweeping, multi-channel comparative advertising campaign entitled "The PuraClear Truth," designed to promote PuraClear at the direct expense of DermaTrūe through a series of demonstrably false claims. The campaign was disseminated across national television, digital video platforms (including Crowne Albany Partners LLC, Dunmore & Co., and Northpoint Services Inc. Reels), in-store point-of-sale displays at major drugstore chains, print advertisements in consumer magazines, and a dedicated campaign webpage on Apex's corporate website. Apex invested an estimated $23.0 million in the campaign from June through August 2025 alone — $14.3 million on television advertising and $8.7 million on digital and social media — ensuring the broadest possible reach for its false messaging.

The campaign makes three categories of false claims that strike at the core of consumer decision-making in the acne-treatment market. First, the campaign prominently asserts that "[i]n a controlled clinical study, PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment," citing a purported study by "Guerrero et al., 2024, Independent Dermatological Review." This claim is a fabrication. No such study has been published in any peer-reviewed journal, and no publication entitled Independent Dermatological Review exists in any recognized scientific database. The only study Apex conducted was a non-blinded, 22-person internal pilot with no control group — an exercise that falls far short of a "controlled clinical study" by any scientific or regulatory standard. Second, the campaign states that "PuraClear delivers premium results at half the price — just $12.99 vs. $28.99 for a comparable DermaTrūe kit." This comparison is materially misleading because it compares non-comparable products: a single 1.0 oz. tube of PuraClear Spot Treatment ($12.99) against the DermaTrūe Complete Acne System, a three-piece regimen kit containing 5.2 oz. of product ($28.99). When calculated on a per-ounce basis, DermaTrūe costs $5.57 per ounce — less than half the $12.99 per ounce cost of PuraClear — meaning the advertisement's core price claim is the precise opposite of the truth. Third, the campaign states that "[u]nlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances." This claim is literally false: DermaTrūe's reformulated 2024 product line, "DermaTrūe Pure," is free of all three categories of ingredients, as independently verified by Beacon Scientific Laboratories LLC.

The consequences of Apex's false campaign have been swift, severe, and measurable. DermaTrūe quarterly revenue plunged from $36.8 million in Q3 2024 to $29.4 million in Q3 2025 — a $7.4 million decline representing a 20.1% drop — directly coinciding with the campaign's run. At DermaTrūe's gross margin of 62.5%, this translates to an estimated $4.625 million in lost gross profit for a single quarter, and an annualized lost-profit estimate of $18.5 million. A nationally representative consumer-perception survey conducted by Dr. Eleanor Fisk of Fisk Analytics Group LLC on August 22, 2025 (n = 1,500; margin of error ±2.5%) reveals devastating shifts in brand perception: 34% of respondents who recalled the PuraClear advertisements now believe DermaTrūe products are "overpriced" (up from 11% in a baseline survey in January 2025), and 27% now believe DermaTrūe is "less effective than PuraClear" (up from 8% at baseline). On August 5, 2025, Kingsley Drug Stores LLC — one of Meridian's largest retail partners, operating more than 2,400 stores nationwide — notified Meridian that it was reducing DermaTrūe shelf space by 30% effective October 1, 2025, citing declining consumer demand. The estimated annual revenue impact of this shelf-space reduction alone is $4.1 million. And once retail shelf space is lost, it is extraordinarily difficult to recapture in the highly competitive skincare market.

Meridian has attempted to resolve this matter without judicial intervention. On June 18, 2025, Meridian's General Counsel sent Apex a detailed cease-and-desist letter. On July 3, 2025, Apex, through its outside counsel, denied all allegations and refused to modify the campaign. On July 22, 2025, Meridian filed a complaint with the National Advertising Division (NAD) of the BBB National Programs. On August 15, 2025, the NAD issued a preliminary recommendation that Apex discontinue or modify the clinical superiority and price-comparison claims pending further substantiation. Apex publicly stated it would appeal the NAD recommendation and refused to modify the campaign. The campaign continues to run as of the date of this filing, compounding the harm with each passing day.

Meridian now seeks emergency injunctive relief from this Court because it satisfies all four prerequisites for a preliminary injunction under established Second Circuit precedent: (1) Meridian has a clear likelihood of success on the merits of its Lanham Act, state-law, and common-law claims; (2) Meridian is suffering — and will continue to suffer — irreparable harm absent injunctive relief; (3) the balance of equities tips decidedly in Meridian's favor; and (4) the public interest strongly supports enjoining false commercial speech that deceives consumers about the efficacy, price, and safety of health-related products they use every day.

STATEMENT OF FACTS

The following facts are drawn from the Declaration of Julia Whitmore, Chief Marketing Officer of Meridian Consumer Brands LLC ("Whitmore Decl."), and the Declaration of Dr. Eleanor Fisk, Principal of Fisk Analytics Group LLC ("Fisk Decl."), each filed concurrently herewith and incorporated by reference.

A. The Parties

1. Meridian Consumer Brands LLC

Meridian Consumer Brands LLC is a Delaware limited liability company registered to do business in the State of New York, with its principal place of business at 410 West 34th Street, 18th Floor, New York, New York 10001. Whitmore Decl. ¶ 1. Meridian develops, markets, and distributes premium skincare, personal-care, and over-the-counter ("OTC") dermatological products sold through retail, e-commerce, and professional channels throughout the United States and in select international markets. Id. ¶ 2.

Meridian's portfolio includes three principal brand families: DermaTrūe, a comprehensive acne and blemish treatment line; Velara, an anti-aging skincare collection; and SkinSense, a line formulated for sensitive skin. Id. ¶ 3. Of these, DermaTrūe is Meridian's flagship brand and its single largest revenue contributor. In fiscal year 2024, the DermaTrūe line generated $138.2 million in revenue, representing 28.3% of Meridian's total revenue for that period. Id. ¶ 4. The DermaTrūe line maintains a gross margin of 62.5%, reflecting both the premium positioning of the brand and Meridian's substantial investment in product research, clinical testing, and quality control. Id. ¶ 5.

Meridian's total revenue for fiscal year 2024 was $487.6 million, as audited by Ashford & Kline LLP, an independent public accounting firm. Id. ¶ 6. Meridian's parent entity is Brindoval Capital Partners Fund IV LP, a Delaware limited partnership private equity fund that acquired Meridian in 2019. Id. ¶ 7. Since the acquisition, Brindoval and Meridian's management team have invested heavily in brand development, product innovation, and quality assurance for the DermaTrūe line, including the 2024 reformulation of the "DermaTrūe Pure" product sub-line, which eliminated parabens, sulfates, and synthetic fragrances from all formulations in response to evolving consumer preferences for "clean" personal-care products. Id. ¶ 8.

Meridian's senior leadership includes: Nathan Hartwell, Chief Executive Officer; Julia Whitmore, Chief Marketing Officer; Derek Cho, General Counsel; and Dr. Annika Patel, Vice President of Regulatory & Scientific Affairs. Id. ¶ 8.

2. Apex Naturals Inc.

Defendant Apex Naturals Inc. is a Delaware corporation with its principal place of business at 75 Commerce Boulevard, Suite 300, Parsippany, New Jersey 07054. Whitmore Decl. ¶ 9. Apex develops and sells mass-market and "clean-beauty" skincare and acne-treatment products distributed primarily through drugstore retail channels and e-commerce platforms throughout the United States. Id. Apex's principal product families include PuraClear, an acne-treatment line that competes directly with DermaTrūe; GreenVeil, a botanical skincare line; and ClearPath, a line of dermatological cleansers. Id.

Based on publicly available information and industry reports, Apex's total revenue for fiscal year 2024 was approximately $312.4 million. Id. ¶ 10. The PuraClear line generated estimated revenue of approximately $89.7 million in the same period, representing approximately 28.7% of Apex's total revenue. Id. PuraClear is Apex's largest single product line and a direct competitor to DermaTrūe in the drugstore and mass-market acne-treatment segment. Id.

Apex's senior leadership includes: Marcus Devlin, Chief Executive Officer and Founder; Rachel Emory, Chief Marketing Officer; Dr. Simon Guerrero, Vice President of Product Development; and Tanya Fischetti, General Counsel. Id. ¶ 11. Apex is represented in this matter by the law firm of Caldwell, Briggs & Nolan LLP, 200 Park Avenue, 42nd Floor, New York, New York 10166 (Harrison Briggs, Lead Partner; Leah Tannenbaum, Associate). Id.

B. Apex's "The PuraClear Truth" Campaign

On June 2, 2025, Apex launched a massive, multi-channel comparative advertising campaign entitled "The PuraClear Truth," which Apex internally referred to as "Project Clarity." Whitmore Decl. ¶ 12. The campaign was designed and produced by Brightline Creative Partners LLC (Owen Prescott, Chief Creative Officer), an advertising agency located at 55 Washington Street, Suite 900, Brooklyn, New York 11201. Id.

The campaign was disseminated across an exceptionally broad range of media channels, reflecting Apex's apparent determination to saturate the consumer marketplace with its messaging. Specifically, the campaign ran across the following channels:

(a) National television: 30-second and 60-second television spots aired on major broadcast and cable networks during prime-time and daytime programming;

(b) Digital video platforms: Pre-roll and mid-roll video advertisements on Crowne Albany Partners LLC, as well as sponsored content on Dunmore & Co. and Northpoint Services Inc. Reels targeting acne-treatment consumers in key demographic segments;

(c) In-store point-of-sale displays: Promotional signage, shelf-talkers, and end-cap displays deployed at major drugstore chains across the United States, positioned in direct proximity to DermaTrūe products;

(d) Print advertisements: Full-page and half-page advertisements in national consumer magazines, including publications targeting health-conscious and beauty-conscious readerships; and

(e) Dedicated campaign webpage: A purpose-built landing page on Apex's corporate website at www.apexnaturals.com/puraclear-truth, hosting campaign videos, downloadable comparison charts, and narrative content repeating the campaign's core claims.

Id. ¶¶ 13–14.

The scale of Apex's investment in the campaign underscores the breadth and intensity of the false messaging. From June through August 2025, Apex's estimated total campaign expenditure was $23.0 million, of which approximately $14.3 million was allocated to television advertising and approximately $8.7 million was allocated to digital and social media placements. Id. ¶ 15. Exemplar campaign materials — including screenshots, print advertisements, and transcripts of the 30-second and 60-second television spots — are attached as Exhibits A through D to the Whitmore Declaration.

C. The Three Categories of False Claims

The PuraClear Truth campaign centers on three distinct categories of false claims, each of which targets a core attribute that consumers rely upon when selecting acne-treatment products: clinical efficacy, price and value, and ingredient safety. Each category is addressed in turn below.

1. The Fabricated Clinical Superiority Claim

The campaign prominently and repeatedly states:

"In a controlled clinical study, PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment."

Whitmore Decl. ¶ 16. This claim appears in the television spots, digital video advertisements, print advertisements, in-store point-of-sale displays, and on the campaign webpage. Id. In each instance, the advertisement cites "Guerrero et al., 2024, Independent Dermatological Review" as the source of the clinical data supporting the 47% superiority claim. Id. ¶ 17.

Meridian's investigation has revealed that this citation is fabricated. No study entitled "Guerrero et al., 2024" has been published in any peer-reviewed dermatological, medical, or scientific journal. Id. ¶ 18. Moreover, no publication entitled Independent Dermatological Review exists in any recognized scientific database, including PubMed, the Web of Science, Hollowell Data Systems, or the MEDLINE database maintained by the U.S. National Library of Medicine. Id. Meridian's Vice President of Regulatory & Scientific Affairs, Dr. Annika Patel, conducted a comprehensive search of these databases and confirmed the complete absence of any publication matching the cited reference. Id.

The only study Apex appears to have conducted in connection with the PuraClear line is a small-scale internal pilot study involving 22 participants, conducted under the supervision of Dr. Simon Guerrero, Apex's Vice President of Product Development. Whitmore Decl. ¶ 19. Based on information available to Meridian, this pilot study was non-blinded (neither participants nor evaluators were blinded to treatment assignment), lacked any control group (no placebo or comparator arm), and was conducted entirely in-house by Apex employees rather than by an independent research institution. Id. By any accepted scientific or regulatory standard — including the standards set forth by the U.S. Food and Drug Administration ("FDA") for OTC drug product claims and the guidelines published by the American Academy of Dermatology for clinical trials in acne — a non-blinded, uncontrolled, 22-person in-house pilot does not constitute a "controlled clinical study." Id. ¶ 20.

Meridian anticipates presenting expert testimony from Dr. Miriam Salazar of Graystone University Medical Center, a board-certified dermatologist and clinical trial methodologist with over twenty years of experience designing and evaluating dermatological clinical studies. Dr. Salazar is expected to testify that Apex's 22-person pilot study is scientifically invalid and cannot support the claim that PuraClear is "47% faster" than DermaTrūe at reducing acne blemishes. Id.

2. The Misleading Price Comparison Claim

The campaign states:

"PuraClear delivers premium results at half the price — just $12.99 vs. $28.99 for a comparable DermaTrūe kit."

Whitmore Decl. ¶ 21. This claim appears in substantially the same form across the campaign's television, digital, print, and in-store materials, and on the campaign webpage. Id.

This price comparison is materially misleading because it compares products that are in no meaningful sense "comparable." The PuraClear product referenced in the advertisement is the PuraClear Spot Treatment, a single 1.0 oz. tube of topical acne spot treatment retailing at $12.99. Id. ¶ 22. The DermaTrūe product referenced is the DermaTrūe Complete Acne System, a three-piece regimen kit containing: (i) a 2.0 oz. facial cleanser; (ii) a 1.5 oz. treatment gel; and (iii) a 1.7 oz. moisturizer — totaling 5.2 oz. of product across three distinct formulations — retailing at $28.99. Id. ¶ 23.

When analyzed on a per-ounce basis — the standard unit-price comparison that the Federal Trade Commission and state consumer-protection authorities have long recognized as the appropriate basis for evaluating the relative cost of comparable consumer products — the advertisement's core price claim is not merely misleading; it is the precise inverse of the truth:

• DermaTrūe Complete Acne System: $28.99 ÷ 5.2 oz. = $5.57 per ounce

• PuraClear Spot Treatment: $12.99 ÷ 1.0 oz. = $12.99 per ounce

Whitmore Decl. ¶ 24. On a per-ounce basis, the PuraClear product costs more than double the DermaTrūe product ($12.99/oz. versus $5.57/oz.) — the precise opposite of the impression the advertisement creates. Id. ¶ 25. By labeling these products "comparable" and presenting their prices side-by-side without disclosing the dramatic disparity in volume and product composition, the advertisement is designed to — and does — create the false impression that DermaTrūe is significantly more expensive than PuraClear when the reverse is true. Id. Product packaging and pricing data for both products is attached as Exhibit E to the Whitmore Declaration.

3. The False "Clean" Ingredients Claim

The campaign states:

"Unlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances."

Whitmore Decl. ¶ 26. This claim appears prominently in television spots, digital advertisements, in-store point-of-sale materials, and on the campaign webpage. Id.

This claim is literally false. In 2024, Meridian completed a comprehensive reformulation of its DermaTrūe product line, resulting in the launch of the "DermaTrūe Pure" sub-line. Id. ¶ 27. Every product in the DermaTrūe Pure sub-line is formulated without parabens, sulfates, or synthetic fragrances. Id. This reformulation was the culmination of an 18-month research and development initiative led by Dr. Annika Patel and Meridian's scientific team, undertaken in direct response to growing consumer demand for "clean" personal-care products. Id.

The absence of these ingredients in the DermaTrūe Pure formulations has been independently verified. On March 15, 2025, Beacon Scientific Laboratories LLC, an independent analytical testing laboratory located at 44 Industrial Parkway, Edison, New Jersey 08817, completed a comprehensive compositional analysis of the full DermaTrūe Pure product range. Whitmore Decl. ¶ 28. Beacon Scientific's Lab Report No. BSL-2025-0412, dated March 15, 2025, confirms that no parabens, sulfates, or synthetic fragrances were detected in any of the tested DermaTrūe Pure products. Id. ¶ 29. A copy of the Beacon Scientific lab report is attached as Exhibit F to the Whitmore Declaration.

By asserting "Unlike DermaTrūe," the advertisement makes an unambiguous factual assertion that DermaTrūe products contain parabens, sulfates, and synthetic fragrances. That assertion is demonstrably and categorically false as applied to the DermaTrūe Pure product line.

D. Pre-Litigation Efforts to Halt the Campaign

Before commencing this action and seeking judicial intervention, Meridian undertook extensive good-faith efforts to resolve this dispute and halt the dissemination of false advertising through non-litigation channels.

On June 18, 2025, just sixteen days after the campaign launch, Meridian's General Counsel, Derek Cho, sent a detailed cease-and-desist letter to Apex's General Counsel, Tanya Fischetti, identifying each of the three categories of false claims, providing supporting evidence of their falsity, and demanding that Apex immediately withdraw all campaign materials from circulation and issue a public retraction. Whitmore Decl. ¶ 30. A copy of the cease-and-desist letter is attached as Exhibit G to the Whitmore Declaration.

On July 3, 2025, Apex responded through its outside counsel, Harrison Briggs of Caldwell, Briggs & Nolan LLP. Whitmore Decl. ¶ 31. In its response, Apex denied all allegations of falsity, asserted that all claims in the campaign are "truthful and substantiated," and declined to withdraw, modify, or retract any portion of the campaign. Id. ¶ 32. Apex's response did not identify any peer-reviewed publication corresponding to the cited "Guerrero et al., 2024, Independent Dermatological Review" study, did not address the product-comparability issues with the price-comparison claim, and did not acknowledge the existence of the DermaTrūe Pure reformulation. Id. A copy of Apex's response is attached as Exhibit H to the Whitmore Declaration.

On July 22, 2025, Meridian filed a formal complaint with the National Advertising Division ("NAD") of the BBB National Programs, the advertising industry's leading self-regulatory body, under Case Reference No. NAD-2025-01847. Whitmore Decl. ¶ 33. Meridian's NAD complaint challenged the clinical superiority claim, the price-comparison claim, and the "clean" ingredients claim on the same grounds set forth in this memorandum.

On August 15, 2025, following its review of the parties' submissions, the NAD issued a preliminary recommendation that Apex discontinue or modify the clinical superiority claim and the price-comparison claim pending further substantiation. Whitmore Decl. ¶ 34. The NAD's preliminary recommendation reflected the NAD's independent assessment that the claims at issue lacked adequate evidentiary support. Id. A copy of the NAD preliminary recommendation is attached as Exhibit I to the Whitmore Declaration.

Despite the NAD's preliminary recommendation, Apex publicly announced that it would appeal the recommendation through the NAD's appellate process and declined to make any modifications to the campaign in the interim. Whitmore Decl. ¶ 35. As of the date of this filing — September 26, 2025 — the campaign continues to run across all channels, including national television, digital platforms, in-store point-of-sale displays, and the campaign webpage. Id. ¶ 36.

E. Harm to Meridian

Apex's false advertising campaign has inflicted severe, measurable, and escalating harm on Meridian's business and on the DermaTrūe brand.

Revenue Decline. DermaTrūe's Q3 2025 revenue was $29.4 million, compared to Q3 2024 revenue of $36.8 million — a decline of $7.4 million, representing a 20.1% year-over-year drop. Whitmore Decl. ¶ 37. The timing of this decline is directly correlated with the launch and continuation of "The PuraClear Truth" campaign, which began on June 2, 2025 — the first day of Q3 2025. Id. At DermaTrūe's gross margin of 62.5%, the $7.4 million revenue decline translates to an estimated $4.625 million in lost gross profit for Q3 2025 alone. Id. ¶ 38. Annualized, this equates to an estimated $18.5 million in lost gross profit if the current trajectory continues unabated. Id.

Consumer-Perception Damage. A consumer-perception survey conducted by Dr. Eleanor Fisk of Fisk Analytics Group LLC on August 22, 2025, provides further quantitative evidence of the campaign's impact. Fisk Decl. ¶¶ 1–9. Dr. Fisk's survey employed a nationally representative sample of 1,500 adults with a margin of error of ±2.5 percentage points. Id. ¶ 7. Dr. Fisk compared post-campaign consumer perceptions against baseline data from a substantially identical survey conducted in January 2025, prior to the launch of the campaign. Id. ¶ 10. The results are stark:

• Among respondents who recalled seeing or hearing the PuraClear advertisements, 34% believed DermaTrūe products were "overpriced," compared to 11% in the January 2025 baseline survey — a 23-percentage-point increase. Fisk Decl. ¶ 14.

• Among the same group, 27% believed DermaTrūe was "less effective than PuraClear," compared to 8% at baseline — a 19-percentage-point increase. Fisk Decl. ¶ 16.

These shifts in consumer perception — a tripling of the "overpriced" perception and more than a tripling of the "less effective" perception — represent serious erosion of DermaTrūe's brand equity that, left unchecked, threatens to become permanent and irremediable. Fisk Decl. ¶¶ 19–22.

Loss of Retail Shelf Space. On August 5, 2025, Kingsley Drug Stores LLC, a major national retail chain operating more than 2,400 stores across the United States and one of Meridian's most significant retail partners for the DermaTrūe line, notified Meridian in writing that it was reducing DermaTrūe shelf space by 30% effective October 1, 2025. Whitmore Decl. ¶ 39. Kingsley cited declining consumer demand for DermaTrūe products as the reason for the reduction. Id. ¶ 40. The estimated annual revenue impact of this 30% shelf-space reduction is $4.1 million. Id. ¶ 41. Critically, once retail shelf space is lost in the intensely competitive skincare market, it is extraordinarily difficult and expensive to recapture. Retailers typically reallocate shelf space to competing products, and regaining that space requires lengthy renegotiation, promotional investment, and demonstrated sales recovery — a process that can take years. Id. ¶ 42. A copy of the Kingsley Drug Stores notification letter dated August 5, 2025 is attached as Exhibit J to the Whitmore Declaration.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 65, a party seeking a preliminary injunction must demonstrate: "(1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in [its] favor; and (4) that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Salinger v. Colting, 607 F.3d 68, 79–80 (2d Cir. 2010) (applying the Winter framework in the Second Circuit).

In the Second Circuit, a plaintiff seeking a preliminary injunction in cases arising under the Lanham Act may satisfy the likelihood-of-success requirement by demonstrating either "(a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33 (2d Cir. 1995); see also Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314–15 (2d Cir. 1982). This alternative standard reflects the Second Circuit's recognition that preliminary injunction proceedings involve an inherently abbreviated review of the merits, and that a movant need not demonstrate certainty of ultimate success in order to obtain provisional relief necessary to preserve the status quo and prevent ongoing irreparable harm.

Of particular significance in this case, the Second Circuit has long recognized that in Lanham Act false-advertising cases involving literally false comparative advertising, a showing of literal falsity gives rise to a presumption of irreparable harm, relieving the plaintiff of the burden of introducing consumer survey evidence to demonstrate actual confusion. Coca-Cola Co., 690 F.2d at 317; Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmbH, 843 F.3d 48, 65 (2d Cir. 2016); Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 161–62 (2d Cir. 2007). This presumption is grounded in the common-sense recognition that literally false advertising necessarily deceives consumers, and that the resulting harm to a competitor's goodwill and business reputation is, by its nature, difficult to quantify and impossible to fully redress through monetary damages alone. See Coca-Cola Co., 690 F.2d at 316 ("When a merchandiser . . . makes . . . false claims, . . . the aggrieved competitor need not demonstrate actual consumer confusion.").

Finally, the Court should note that the First Amendment does not protect false or inherently misleading commercial speech. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771–72 (1976) (acknowledging that the state may deal with commercial speech that is "false or misleading" without running afoul of the First Amendment). An injunction prohibiting literally false advertising is therefore entirely consistent with established First Amendment principles and does not raise any heightened scrutiny concerns. See Time Warner Cable, 497 F.3d at 159.

ARGUMENT

I. MERIDIAN IS LIKELY TO SUCCEED ON THE MERITS OF ITS LANHAM ACT CLAIM

A. Legal Framework for Lanham Act § 43(a) False Advertising

Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a)(1)(B), creates a federal cause of action against any person who, "in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities." To prevail on a claim of false advertising under this provision, a plaintiff must establish five elements:

(1) The defendant made a false or misleading statement of fact about a product;

(2) The statement was made in interstate commerce;

(3) The statement was made in connection with "commercial advertising or promotion";

(4) The false or misleading statement is material — that is, it is likely to influence consumers' purchasing decisions; and

(5) The plaintiff has been or is likely to be injured as a result of the false or misleading statement.

See Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmbH, 843 F.3d 48, 63 (2d Cir. 2016); Calderon Corporation Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 255 (2d Cir. 2014); S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001).

The Second Circuit recognizes two distinct categories of actionable false advertising under the Lanham Act. The first category consists of claims that are literally false — that is, claims that are demonstrably untrue on their face or that make unambiguous factual assertions that are susceptible of verification and are, in fact, false. See Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 153 (2d Cir. 2007); Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 317 (2d Cir. 1982). Where an advertising claim is literally false, the court may enjoin the claim without requiring the plaintiff to submit consumer survey evidence demonstrating actual confusion or deception, because the tendency of a literally false claim to deceive consumers "may be presumed." Coca-Cola Co., 690 F.2d at 317; see also Church & Dwight Co., 843 F.3d at 65.

The second category consists of claims that are literally true but misleading — that is, claims that, while not facially false, create a false impression in the minds of a substantial segment of the target audience through the use of innuendo, ambiguity, or omission. See S.C. Johnson, 241 F.3d at 238; Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2d Cir. 1981). For this category, a plaintiff must introduce extrinsic evidence — typically in the form of consumer surveys — demonstrating that the challenged advertisement actually misled or is likely to mislead consumers. See Vidal Sassoon, 661 F.2d at 278.

A claim may also be deemed literally false by "necessary implication" — that is, where "the words or images, considered in context, necessarily imply a false message." Time Warner Cable, 497 F.3d at 158. This doctrine recognizes that "advertisers should not be permitted to immunize false or misleading claims simply by tweaking the literal words of an advertisement while preserving its false message." Id. The court evaluates whether, in the context of the advertisement as a whole, the statement "unambiguously makes a claim that is not true." Id.

The establishment-claim doctrine is also relevant here. Where an advertiser makes claims about its product that are purportedly based on scientific tests or studies, and those tests or studies do not exist or do not support the claims made, the advertising is literally false. See Greaves Group v. Chesebrough-Pond's Inc., 747 F.2d 114, 119 (2d Cir. 1984); McNeil-PPC, Inc. v. Northpoint Holdings, 351 F. Supp. 2d 226, 249–50 (S.D.N.Y. 2005); see also consumer Health, Inc. v. Calderon Corporation-consumer Pharms. Co., 290 F.3d 578, 590 (3d Cir. 2002). As one court has explained, "[w]hen an advertiser cites a study as proof of a claim, the advertising is literally false if the study does not support the claim." McNeil-PPC, 351 F. Supp. 2d at 249. See also 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:35 (5th ed. 2025) (discussing establishment claims and the requirement that cited studies actually support the advertised claims).

Here, Meridian demonstrates that all three of Apex's challenged claims are literally false — and thus no consumer survey evidence is required, although such evidence has been supplied in abundance by Dr. Fisk's survey. In the alternative, even if the Court were to conclude that any of the claims is not literally false but rather literally true yet misleading, Meridian has adduced consumer survey evidence — the Fisk Analytics survey (Fisk Decl.) — demonstrating that the campaign has in fact misled a substantial percentage of consumers. Meridian is therefore likely to succeed on the merits under either analytical framework.

B. The Clinical Superiority Claim Is Literally False

The first, and perhaps most egregious, false claim in the campaign is the fabricated clinical superiority claim. The advertisement states:

"In a controlled clinical study, PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment."

This claim is accompanied in the campaign materials by a citation to "Guerrero et al., 2024, Independent Dermatological Review." This claim is literally false in two independently dispositive respects.

First, the cited study does not exist. The advertisement tells consumers that its efficacy claim is supported by a specific, verifiable peer-reviewed study — one published in a journal called the Independent Dermatological Review and authored by "Guerrero et al." in 2024. This purported study is a complete fabrication. No study by that name, citation, or authorship has been published in any peer-reviewed journal. No publication entitled Independent Dermatological Review exists in any recognized scientific database, including PubMed, the Web of Science, Hollowell Data Systems, or the MEDLINE database maintained by the U.S. National Library of Medicine. Whitmore Decl. ¶ 18. The citation is, in the most literal sense, a fiction — a non-existent study cited to lend the veneer of scientific credibility to an unsupported marketing claim.

The Second Circuit and its district courts have consistently held that advertising claims purportedly based on clinical studies are literally false where the cited studies do not exist or do not support the claims made. See Calderon Corporation v. GAC Int'l, Inc., 862 F.2d 975, 979 (2d Cir. 1988) (advertising claim literally false where underlying test data did not support the advertised claim); McNeil-PPC, Inc. v. Northpoint Holdings, 351 F. Supp. 2d 226, 249–50 (S.D.N.Y. 2005) (establishment claim literally false where the cited studies did not support the specific comparative superiority claim made in the advertisement); see also Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir. 1993) (where tests referenced in the advertising do not "establish the proposition for which they were cited," the advertising is literally false); consumer Health, 290 F.3d at 590 (same). Where, as here, the cited study is entirely nonexistent — a fabricated citation to a nonexistent journal — the case for literal falsity is even stronger than in cases where the cited study merely fails to support the advertised claim. In this instance, the study cannot fail to support the claim because the study does not exist at all.

Second, Apex's actual internal study does not constitute a "controlled clinical study." Even setting aside the fabricated citation, the campaign's description of the underlying research as a "controlled clinical study" is itself literally false. The only study Apex conducted was a non-blinded, 22-person internal pilot with no control group. Whitmore Decl. ¶ 19. The absence of blinding means that participants and evaluators were aware of which treatment was being administered, introducing a well-recognized source of bias. The absence of a control group — whether placebo or active comparator — means that no valid comparison can be drawn between the PuraClear treatment and any other product. And a sample size of 22 participants is grossly insufficient to support any statistically valid conclusion about comparative efficacy, particularly one expressed with the spurious precision of "47% faster." Id. ¶ 20.

Meridian anticipates presenting expert testimony from Dr. Miriam Salazar of Graystone University Medical Center on these points. Dr. Salazar is a board-certified dermatologist and clinical trial methodologist who has designed and supervised over 40 clinical trials in dermatology and has published extensively on clinical study design in peer-reviewed journals. Dr. Salazar is expected to testify that Apex's 22-person internal pilot fails to meet any recognized scientific standard for a "controlled clinical study" and is incapable of supporting the comparative superiority claim asserted in the campaign. Id.

Because the clinical superiority claim is literally false — both in its citation to a nonexistent study and in its characterization of a rudimentary internal pilot as a "controlled clinical study" — the Court need not require consumer confusion evidence. See Coca-Cola Co., 690 F.2d at 317; Church & Dwight Co., 843 F.3d at 65. The claim is unambiguous: it tells consumers, in plain language and with a specific citation, that a rigorous clinical study proves PuraClear's superiority over DermaTrūe by a precise quantitative margin. There is no plausible interpretation of this claim that renders it truthful. This is not a case of puffery or vague comparative claims; it is a case of specific, verifiable — and verifiably false — factual assertions.

C. The Price Comparison Claim Is Literally False and/or Misleading

The second category of false claims in the campaign is the deceptive price comparison. The advertisement states:

"PuraClear delivers premium results at half the price — just $12.99 vs. $28.99 for a comparable DermaTrūe kit."

This claim is literally false because the products compared are not, by any reasonable measure, "comparable." The claim makes an unambiguous factual assertion — that the two products being compared are comparable — and that assertion is demonstrably untrue.

The PuraClear product referenced in the advertisement is the PuraClear Spot Treatment, a single 1.0 oz. tube of topical acne spot treatment with a retail price of $12.99. Whitmore Decl. ¶ 22. The DermaTrūe product referenced is the DermaTrūe Complete Acne System, a three-piece regimen kit containing: (i) a 2.0 oz. facial cleanser; (ii) a 1.5 oz. treatment gel; and (iii) a 1.7 oz. moisturizer — totaling 5.2 oz. of product across three distinct formulations — with a retail price of $28.99. Id. ¶ 23.

These products are not comparable in any meaningful sense. The DermaTrūe Complete Acne System contains more than five times the total product volume (5.2 oz. versus 1.0 oz.) and includes three distinct product types serving different functions in a comprehensive acne-treatment regimen. The PuraClear Spot Treatment is a single-function product designed for targeted application to individual blemishes. Comparing their sticker prices without disclosing these fundamental differences in product composition, volume, and function is not merely misleading — it is a factual misrepresentation. The advertisement's characterization of these products as "comparable" is an unambiguous false statement of fact.

The per-ounce comparison reveals the full extent of the deception. On a per-ounce basis — the standard metric for comparing the relative cost of consumer products — the DermaTrūe Complete Acne System costs $5.57 per ounce ($28.99 ÷ 5.2 oz.), while the PuraClear Spot Treatment costs $12.99 per ounce ($12.99 ÷ 1.0 oz.). Whitmore Decl. ¶ 24. PuraClear is thus more than double the per-ounce price of DermaTrūe — the precise opposite of the impression created by the advertisement. Id. ¶ 25. The advertisement does not disclose product sizes, product volumes, or per-ounce pricing to the consumer, thereby preventing the consumer from making an informed comparison. Id.

Courts have consistently found that price-comparison claims involving non-comparable products are actionable under the Lanham Act. See S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 239 (2d Cir. 2001) (false advertising claim viable where comparison involved materially different products); Time Warner Cable, 497 F.3d at 153–54 (discussing literal falsity by necessary implication); Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 249 (3d Cir. 2011) (comparative advertising must compare "genuinely comparable" products to avoid Lanham Act liability); see also Warner-Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 96 (3d Cir. 2000) (finding literal falsity where an advertiser's comparison was based on a materially misleading premise). Here, the assertion that a 1.0 oz. single-product tube and a 5.2 oz. three-piece regimen kit are "comparable" for purposes of a price comparison is a literally false statement of fact.

Even if the Court were to conclude that the price-comparison claim is not literally false but rather falls into the category of literally true yet misleading claims, Meridian has adduced more than sufficient evidence of actual consumer deception. The Fisk Analytics survey demonstrates that among respondents who recalled the PuraClear advertisements, 34% believe DermaTrūe products are "overpriced," compared to 11% in the January 2025 baseline survey — a 23-percentage-point increase directly attributable to the campaign. Fisk Decl. ¶¶ 14–18. This dramatic shift in consumer price perception provides compelling evidence that the price-comparison claim has, in fact, misled a substantial portion of consumers. Under either the literal-falsity or the misleading-by-implication framework, Meridian is likely to succeed on the merits of its challenge to the price-comparison claim.

D. The "Clean" Ingredients Claim Is Literally False

The third category of false claims is the "clean" ingredients claim. The advertisement states:

"Unlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances."

This claim is literally false. The claim makes an explicit, unambiguous factual assertion about a competitor's product — specifically, that DermaTrūe products contain parabens, sulfates, and synthetic fragrances. That assertion is demonstrably untrue.

DermaTrūe's reformulated 2024 product line, "DermaTrūe Pure," is free of parabens, sulfates, and synthetic fragrances. Whitmore Decl. ¶ 27. This is not a matter of interpretation, implication, or consumer perception. It is an objective, verifiable fact confirmed by independent laboratory testing. Beacon Scientific Laboratories LLC, an independent analytical testing laboratory, completed a comprehensive compositional analysis of the full DermaTrūe Pure product range and issued Lab Report No. BSL-2025-0412, dated March 15, 2025, confirming that no parabens, sulfates, or synthetic fragrances were detected in any of the tested products. Whitmore Decl. ¶¶ 28–29; Ex. F.

The claim is not ambiguous. It is not puffery. It is not a statement of opinion. By using the phrase "Unlike DermaTrūe," the advertisement makes a direct, explicit, and unqualified factual comparison between PuraClear and DermaTrūe on the specific attribute of ingredient composition. The "unlike" construction necessarily and unambiguously implies that DermaTrūe contains the enumerated ingredients — parabens, sulfates, and synthetic fragrances — while PuraClear does not. This implication is the entire point of the claim: to differentiate PuraClear from DermaTrūe by asserting that DermaTrūe uses ingredient categories that are disfavored by health-conscious consumers. Because the underlying factual predicate of the claim — that DermaTrūe contains these ingredients — is demonstrably false, the claim is literally false as a matter of law, and no consumer survey evidence is required. See Coca-Cola Co., 690 F.2d at 317.

E. The False Claims Are Material and Have Caused Injury

Having established that all three of Apex's challenged claims are literally false, Meridian further demonstrates that the claims are material — that is, they are likely to influence consumers' purchasing decisions — and that they have, in fact, caused injury to Meridian.

Materiality. The three categories of claims at issue go to the very core of the attributes that consumers consider when selecting acne-treatment products: clinical efficacy, price and value, and ingredient safety. Clinical efficacy is the single most important factor for consumers evaluating acne treatments — consumers want products that work. Price and value are the second most important factor — consumers want to know that they are getting a fair deal. And ingredient safety is an increasingly important factor, particularly among the growing segment of consumers who seek "clean" or "natural" personal-care products. See Vidal Sassoon, 661 F.2d at 278 (materiality established where the false claims "would affect purchase decisions"); see also Calderon Corporation Eprova, 760 F.3d at 256 (claims are material where they concern "core characteristics" of the product).

The materiality of Apex's false claims is further established by the Fisk Analytics consumer-perception survey. Among respondents who recalled seeing or hearing the PuraClear advertisements, 34% now believe DermaTrūe products are "overpriced" (up from 11% at baseline) — a 23-percentage-point increase — and 27% now believe DermaTrūe is "less effective than PuraClear" (up from 8% at baseline) — a 19-percentage-point increase. Fisk Decl. ¶¶ 14–20. These dramatic, measurable shifts in consumer perception demonstrate that the campaign's false claims are not merely theoretical risks; they have actually influenced consumer attitudes toward DermaTrūe in precisely the ways one would expect false claims about price and efficacy to do.

Injury. Meridian has suffered concrete, quantifiable injury as a direct result of the campaign. DermaTrūe Q3 2025 revenue declined to $29.4 million from $36.8 million in Q3 2024 — a $7.4 million drop (20.1%) coinciding precisely with the campaign's duration. Whitmore Decl. ¶ 37. At DermaTrūe's 62.5% gross margin, this represents an estimated $4.625 million in lost gross profit for a single quarter. Id. ¶ 38. In addition, Kingsley Drug Stores LLC has notified Meridian of a 30% reduction in DermaTrūe shelf space effective October 1, 2025, representing an estimated $4.1 million in additional annual revenue at risk. Id. ¶¶ 39–41.

The campaign was disseminated in interstate commerce across national television, digital platforms, in-store displays, print media, and Apex's corporate website, with an estimated total campaign expenditure of $23.0 million from June through August 2025. Whitmore Decl. ¶ 15. There is no question that the false claims were made in "commercial advertising or promotion" within the meaning of the Lanham Act — indeed, this is a textbook case of comparative advertising designed to divert sales from a named competitor.

See Calderon Corporation, 862 F.2d at 980–81 (injury established by evidence of lost sales and damage to goodwill resulting from literally false advertising); Calderon Corporation Eprova, 760 F.3d at 258 (injury need not be established with precision at the preliminary-injunction stage; a showing that "the defendant's success is at the plaintiff's expense" is sufficient); see also Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1321 (11th Cir. 2010) (Lanham Act injury established where plaintiff demonstrated lost sales and consumer confusion attributable to defendant's false claims).

F. Meridian Is Also Likely to Succeed on Its State-Law and Common-Law Claims

In addition to its strong Lanham Act claim, Meridian is also likely to succeed on the merits of its state-law and common-law claims, which provide independent bases for injunctive relief.

New York General Business Law § 349 (Deceptive Acts and Practices). Section 349 of the New York General Business Law broadly prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service" within the State of New York. N.Y. Gen. Bus. Law § 349(a). To state a claim under Section 349, a plaintiff must demonstrate: (1) a consumer-oriented act or practice; (2) that is misleading in a material way; and (3) that causes injury. See Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97, 114 (2d Cir. 2009). The standard requires only that the act or practice is "likely to mislead a reasonable consumer acting reasonably under the circumstances." Id. Apex's false advertising campaign — disseminated to consumers nationwide, including throughout New York — plainly satisfies this standard. The same literally false claims that support Meridian's Lanham Act cause of action constitute consumer-oriented conduct that is misleading in a material respect and has caused injury to Meridian's business.

New York General Business Law § 350 (False Advertising). Section 350 of the New York General Business Law prohibits "[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service" within the State of New York. N.Y. Gen. Bus. Law § 350. A claim under Section 350 requires that the advertising is "misleading in a material respect." Id. The same literally false statements that form the basis of the Lanham Act claim — the fabricated clinical study, the deceptive price comparison, and the false ingredients claim — constitute false advertising that is misleading in a material respect under Section 350. See Piccoli A/S v. Calvin Klein Jeanswear Co., 19 F. Supp. 2d 157, 168 (S.D.N.Y. 1998) (Section 350 claim properly lies where the same facts support a Lanham Act false advertising claim).

Common-Law Unfair Competition. Under New York common law, a claim for unfair competition lies where a defendant engages in conduct constituting "misappropriation of the skill, expenditures, and labor of another." ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 478 (2007); see also Restatement (Third) of Unfair Competition §§ 2, 3 (1995). Apex's false comparative advertising campaign — which systematically disparages DermaTrūe through fabricated science and deceptive comparisons in order to divert DermaTrūe's customers to PuraClear — constitutes unfair competition under New York law. See Zentralsparkasse und Kommerzialbank v. Schenkers Int'l Forwarders, Inc., 741 F. Supp. 1102, 1112 (S.D.N.Y. 1990).

Tortious Interference with Business Relations. Finally, Apex's false advertising campaign has directly caused Kingsley Drug Stores LLC — one of Meridian's most important retail partners — to reduce DermaTrūe shelf space by 30% effective October 1, 2025, with an estimated annual revenue impact of $4.1 million. Whitmore Decl. ¶¶ 39–41. Under New York law, a claim for tortious interference with business relations requires: (1) the existence of a valid business relationship with a third party; (2) the defendant's knowledge of that relationship; (3) the defendant's intentional interference with that relationship through wrongful means; and (4) damages. Apex was aware of Meridian's retail relationships — DermaTrūe products are displayed on the same retail shelves as PuraClear products — and the campaign's false claims constitute "wrongful means" sufficient to support a tortious interference claim. The Kingsley shelf-space reduction constitutes direct, quantifiable damage flowing from that interference.

Each of these state-law and common-law claims provides an independent basis for the injunctive relief Meridian seeks. The strength of these claims reinforces Meridian's showing of a likelihood of success on the merits.

II. MERIDIAN WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF

Meridian has demonstrated — and continues to suffer — irreparable harm that cannot be adequately compensated by money damages alone. The record evidence establishes irreparable harm through multiple, independent pathways: the ongoing erosion of DermaTrūe's brand goodwill and reputation; the presumption of irreparable harm arising from literal falsity in the Second Circuit; the quantifiable and accelerating revenue losses that confirm and reinforce the intangible harms; and the ongoing, escalating nature of the injury as the campaign continues to run.

A. Loss of Goodwill and Brand Reputation Cannot Be Compensated by Money Damages

The harm that Apex's false advertising campaign is inflicting on Meridian's DermaTrūe brand is precisely the type of intangible, ongoing injury that courts have long recognized as irreparable. The DermaTrūe brand represents years of investment in product development, clinical testing, marketing, and consumer trust. It generated $138.2 million in revenue in fiscal year 2024 — a figure that reflects not merely the value of the physical products sold, but the accumulated goodwill, brand equity, and consumer trust that Meridian has built over time. Whitmore Decl. ¶¶ 4–8. The erosion of that goodwill — once lost — is extraordinarily difficult to restore, even with aggressive corrective advertising and promotional investment.

The Fisk Analytics consumer-perception survey provides direct, quantitative evidence of this ongoing erosion. Among respondents who recalled the PuraClear advertisements, 34% now believe DermaTrūe products are "overpriced" — triple the 11% baseline — and 27% now believe DermaTrūe is "less effective than PuraClear" — more than triple the 8% baseline. Fisk Decl. ¶¶ 14–20. These shifts in consumer perception represent a wholesale rewriting of DermaTrūe's brand narrative in the minds of American consumers, driven by advertising that this Court is asked to find is literally false. Consumer perceptions, once formed, are sticky and resistant to correction — a reality that marketing science has consistently documented. The longer Apex's campaign runs, the more deeply these false perceptions will become entrenched, and the more costly and time-consuming it will be for Meridian to repair its brand.

Courts in this Circuit have consistently recognized that loss of goodwill and damage to business reputation constitute irreparable harm not adequately compensable by money damages. See Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 318 (2d Cir. 1982) (finding irreparable harm where false advertising caused ongoing damage to plaintiff's goodwill and competitive position); Tom Doherty Assocs., 60 F.3d at 37 ("The loss of fair competition that a plaintiff endures due to false advertising is a harm that cannot easily be compensated after trial"); S.C. Johnson, 241 F.3d at 239–40 (loss of consumer goodwill resulting from false advertising constitutes irreparable harm).

B. The Presumption of Irreparable Harm Applies

In the Second Circuit, a showing of literal falsity in a comparative advertising case gives rise to a presumption of irreparable harm. Coca-Cola Co., 690 F.2d at 316–17; Church & Dwight Co., 843 F.3d at 65; Calderon Corporation, 862 F.2d at 980; Time Warner Cable, 497 F.3d at 161–62. This presumption reflects the practical reality that literally false advertising, by its very nature, deceives consumers and causes ongoing harm to a competitor's reputation and competitive position — harm that is inherently difficult to quantify and impossible to fully redress through an award of money damages after the fact.

As demonstrated in Section I above, all three of Apex's challenged claims are literally false:

(1) The clinical superiority claim cites a fabricated study that does not exist and mischaracterizes a rudimentary 22-person internal pilot as a "controlled clinical study";

(2) The price-comparison claim falsely asserts that non-comparable products of vastly different size and composition are "comparable" and presents a sticker-price comparison that inverts the true per-unit cost relationship; and

(3) The "clean" ingredients claim falsely asserts that DermaTrūe products contain parabens, sulfates, and synthetic fragrances when the DermaTrūe Pure line is independently verified to be free of all three.

Because each of these claims is literally false, the presumption of irreparable harm applies. This alone is sufficient to satisfy the irreparable-harm prong of the preliminary-injunction analysis. See Greaves Group v. Chesebrough-Pond's Inc., 747 F.2d 114, 118–19 (2d Cir. 1984) (presumption of irreparable harm upon showing of literal falsity).

C. Quantifiable Sales Losses Confirm and Reinforce Irreparable Harm

While the presumption of irreparable harm is alone sufficient, the quantifiable sales losses Meridian has already suffered confirm and reinforce the Court's finding of irreparable harm. DermaTrūe revenue declined from $36.8 million in Q3 2024 to $29.4 million in Q3 2025 — a $7.4 million decrease (20.1%) — coinciding precisely with the launch and continuation of Apex's campaign. Whitmore Decl. ¶ 37. At a 62.5% gross margin, this represents an estimated $4.625 million in lost gross profit in a single quarter, and an annualized lost-profit estimate of $18.5 million. Id. ¶ 38.

These revenue losses will compound if the campaign continues. The Kingsley Drug Stores shelf-space reduction — a 30% cut effective October 1, 2025 — alone is estimated to cost Meridian $4.1 million in annual revenue. Whitmore Decl. ¶¶ 39–41. Once shelf space is lost in the highly competitive retail skincare market, it is extremely difficult to recapture. Retailers typically reallocate the space to competing brands, and persuading a retailer to restore lost shelf space requires not only a demons

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF MERIDIAN CONSUMER BRANDS LLC'S MOTION FOR A PRELIMINARY INJUNCTION
CALDERWOOD & HARKNESS LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-7800 Facsimile: (212) 555-7801
Linda Osei (Responsible Partner) Priya Anand (Billing Partner) Patrick Gallagher (Lead Associate) Simone Laroche (Associate)
Attorneys for Plaintiff Meridian Consumer Brands LLC
Dated: September 26, 2025
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
Cases
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Other Authorities
PRELIMINARY STATEMENT
Plaintiff Meridian Consumer Brands LLC ("Meridian" or "Plaintiff") respectfully submits this Memorandum of Law in support of its motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 and the inherent authority of this Court. Meridian seeks to halt an ongoing, nationwide false advertising campaign launched by Defendant Apex Naturals Inc. ("Apex" or "Defendant") — a campaign that is built on fabricated science, deceptive pricing comparisons, and demonstrably untrue product-ingredient claims, and that has already inflicted devastating and accelerating harm on Meridian's flagship skincare brand.
Meridian is a leading developer and marketer of premium skincare products, with principal offices at 410 West 34th Street, 18th Floor, New York, New York 10001. Meridian is organized as a Delaware limited liability company and is registered to do business in the State of New York. Among Meridian's portfolio of well-regarded consumer brands, the DermaTrūe acne-treatment line stands as the company's most prominent and commercially significant product offering, generating $138.2 million in revenue in fiscal year 2024 — representing 28.3% of Meridian's total annual revenue of $487.6 million. DermaTrūe has earned the trust of millions of American consumers through years of research, clinical development, and responsible marketing practices.
Defendant Apex Naturals Inc. is a Delaware corporation headquartered at 75 Commerce Boulevard, Suite 300, Parsippany, New Jersey 07054. Apex develops and sells mass-market and "clean-beauty" skincare products, including the PuraClear acne-treatment line, which generated an estimated $89.7 million in revenue in fiscal year 2024. On June 2, 2025, Apex launched a sweeping, multi-channel comparative advertising campaign entitled "The PuraClear Truth," designed to promote PuraClear at the direct expense of DermaTrūe through a series of demonstrably false claims. The campaign was disseminated across national television, digital video platforms (including Crowne Albany Partners LLC, Dunmore & Co., and Northpoint Services Inc. Reels), in-store point-of-sale displays at major drugstore chains, print advertisements in consumer magazines, and a dedicated campaign webpage on Apex's corporate website. Apex invested an estimated $23.0 million in the campaign from June through August 2025 alone — $14.3 million on television advertising and $8.7 million on digital and social media — ensuring the broadest possible reach for its false messaging.
The campaign makes three categories of false claims that strike at the core of consumer decision-making in the acne-treatment market. First, the campaign prominently asserts that "[i]n a controlled clinical study, PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment," citing a purported study by "Guerrero et al., 2024, Independent Dermatological Review." This claim is a fabrication. No such study has been published in any peer-reviewed journal, and no publication entitled Independent Dermatological Review exists in any recognized scientific database. The only study Apex conducted was a non-blinded, 22-person internal pilot with no control group — an exercise that falls far short of a "controlled clinical study" by any scientific or regulatory standard. Second, the campaign states that "PuraClear delivers premium results at half the price — just $12.99 vs. $28.99 for a comparable DermaTrūe kit." This comparison is materially misleading because it compares non-comparable products: a single 1.0 oz. tube of PuraClear Spot Treatment ($12.99) against the DermaTrūe Complete Acne System, a three-piece regimen kit containing 5.2 oz. of product ($28.99). When calculated on a per-ounce basis, DermaTrūe costs $5.57 per ounce — less than half the $12.99 per ounce cost of PuraClear — meaning the advertisement's core price claim is the precise opposite of the truth. Third, the campaign states that "[u]nlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances." This claim is literally false: DermaTrūe's reformulated 2024 product line, "DermaTrūe Pure," is free of all three categories of ingredients, as independently verified by Beacon Scientific Laboratories LLC.
The consequences of Apex's false campaign have been swift, severe, and measurable. DermaTrūe quarterly revenue plunged from $36.8 million in Q3 2024 to $29.4 million in Q3 2025 — a $7.4 million decline representing a 20.1% drop — directly coinciding with the campaign's run. At DermaTrūe's gross margin of 62.5%, this translates to an estimated $4.625 million in lost gross profit for a single quarter, and an annualized lost-profit estimate of $18.5 million. A nationally representative consumer-perception survey conducted by Dr. Eleanor Fisk of Fisk Analytics Group LLC on August 22, 2025 (n = 1,500; margin of error ±2.5%) reveals devastating shifts in brand perception: 34% of respondents who recalled the PuraClear advertisements now believe DermaTrūe products are "overpriced" (up from 11% in a baseline survey in January 2025), and 27% now believe DermaTrūe is "less effective than PuraClear" (up from 8% at baseline). On August 5, 2025, Kingsley Drug Stores LLC — one of Meridian's largest retail partners, operating more than 2,400 stores nationwide — notified Meridian that it was reducing DermaTrūe shelf space by 30% effective October 1, 2025, citing declining consumer demand. The estimated annual revenue impact of this shelf-space reduction alone is $4.1 million. And once retail shelf space is lost, it is extraordinarily difficult to recapture in the highly competitive skincare market.
Meridian has attempted to resolve this matter without judicial intervention. On June 18, 2025, Meridian's General Counsel sent Apex a detailed cease-and-desist letter. On July 3, 2025, Apex, through its outside counsel, denied all allegations and refused to modify the campaign. On July 22, 2025, Meridian filed a complaint with the National Advertising Division (NAD) of the BBB National Programs. On August 15, 2025, the NAD issued a preliminary recommendation that Apex discontinue or modify the clinical superiority and price-comparison claims pending further substantiation. Apex publicly stated it would appeal the NAD recommendation and refused to modify the campaign. The campaign continues to run as of the date of this filing, compounding the harm with each passing day.
Meridian now seeks emergency injunctive relief from this Court because it satisfies all four prerequisites for a preliminary injunction under established Second Circuit precedent: (1) Meridian has a clear likelihood of success on the merits of its Lanham Act, state-law, and common-law claims; (2) Meridian is suffering — and will continue to suffer — irreparable harm absent injunctive relief; (3) the balance of equities tips decidedly in Meridian's favor; and (4) the public interest strongly supports enjoining false commercial speech that deceives consumers about the efficacy, price, and safety of health-related products they use every day.
STATEMENT OF FACTS
The following facts are drawn from the Declaration of Julia Whitmore, Chief Marketing Officer of Meridian Consumer Brands LLC ("Whitmore Decl."), and the Declaration of Dr. Eleanor Fisk, Principal of Fisk Analytics Group LLC ("Fisk Decl."), each filed concurrently herewith and incorporated by reference.
A. The Parties
1. Meridian Consumer Brands LLC
Meridian Consumer Brands LLC is a Delaware limited liability company registered to do business in the State of New York, with its principal place of business at 410 West 34th Street, 18th Floor, New York, New York 10001. Whitmore Decl. ¶ 1. Meridian develops, markets, and distributes premium skincare, personal-care, and over-the-counter ("OTC") dermatological products sold through retail, e-commerce, and professional channels throughout the United States and in select international markets. Id. ¶ 2.
Meridian's portfolio includes three principal brand families: DermaTrūe, a comprehensive acne and blemish treatment line; Velara, an anti-aging skincare collection; and SkinSense, a line formulated for sensitive skin. Id. ¶ 3. Of these, DermaTrūe is Meridian's flagship brand and its single largest revenue contributor. In fiscal year 2024, the DermaTrūe line generated $138.2 million in revenue, representing 28.3% of Meridian's total revenue for that period. Id. ¶ 4. The DermaTrūe line maintains a gross margin of 62.5%, reflecting both the premium positioning of the brand and Meridian's substantial investment in product research, clinical testing, and quality control. Id. ¶ 5.
Meridian's total revenue for fiscal year 2024 was $487.6 million, as audited by Ashford & Kline LLP, an independent public accounting firm. Id. ¶ 6. Meridian's parent entity is Brindoval Capital Partners Fund IV LP, a Delaware limited partnership private equity fund that acquired Meridian in 2019. Id. ¶ 7. Since the acquisition, Brindoval and Meridian's management team have invested heavily in brand development, product innovation, and quality assurance for the DermaTrūe line, including the 2024 reformulation of the "DermaTrūe Pure" product sub-line, which eliminated parabens, sulfates, and synthetic fragrances from all formulations in response to evolving consumer preferences for "clean" personal-care products. Id. ¶ 8.
Meridian's senior leadership includes: Nathan Hartwell, Chief Executive Officer; Julia Whitmore, Chief Marketing Officer; Derek Cho, General Counsel; and Dr. Annika Patel, Vice President of Regulatory & Scientific Affairs. Id. ¶ 8.
2. Apex Naturals Inc.
Defendant Apex Naturals Inc. is a Delaware corporation with its principal place of business at 75 Commerce Boulevard, Suite 300, Parsippany, New Jersey 07054. Whitmore Decl. ¶ 9. Apex develops and sells mass-market and "clean-beauty" skincare and acne-treatment products distributed primarily through drugstore retail channels and e-commerce platforms throughout the United States. Id. Apex's principal product families include PuraClear, an acne-treatment line that competes directly with DermaTrūe; GreenVeil, a botanical skincare line; and ClearPath, a line of dermatological cleansers. Id.
Based on publicly available information and industry reports, Apex's total revenue for fiscal year 2024 was approximately $312.4 million. Id. ¶ 10. The PuraClear line generated estimated revenue of approximately $89.7 million in the same period, representing approximately 28.7% of Apex's total revenue. Id. PuraClear is Apex's largest single product line and a direct competitor to DermaTrūe in the drugstore and mass-market acne-treatment segment. Id.
Apex's senior leadership includes: Marcus Devlin, Chief Executive Officer and Founder; Rachel Emory, Chief Marketing Officer; Dr. Simon Guerrero, Vice President of Product Development; and Tanya Fischetti, General Counsel. Id. ¶ 11. Apex is represented in this matter by the law firm of Caldwell, Briggs & Nolan LLP, 200 Park Avenue, 42nd Floor, New York, New York 10166 (Harrison Briggs, Lead Partner; Leah Tannenbaum, Associate). Id.
B. Apex's "The PuraClear Truth" Campaign
On June 2, 2025, Apex launched a massive, multi-channel comparative advertising campaign entitled "The PuraClear Truth," which Apex internally referred to as "Project Clarity." Whitmore Decl. ¶ 12. The campaign was designed and produced by Brightline Creative Partners LLC (Owen Prescott, Chief Creative Officer), an advertising agency located at 55 Washington Street, Suite 900, Brooklyn, New York 11201. Id.
The campaign was disseminated across an exceptionally broad range of media channels, reflecting Apex's apparent determination to saturate the consumer marketplace with its messaging. Specifically, the campaign ran across the following channels:
(a) National television: 30-second and 60-second television spots aired on major broadcast and cable networks during prime-time and daytime programming;
(b) Digital video platforms: Pre-roll and mid-roll video advertisements on Crowne Albany Partners LLC, as well as sponsored content on Dunmore & Co. and Northpoint Services Inc. Reels targeting acne-treatment consumers in key demographic segments;
(c) In-store point-of-sale displays: Promotional signage, shelf-talkers, and end-cap displays deployed at major drugstore chains across the United States, positioned in direct proximity to DermaTrūe products;
(d) Print advertisements: Full-page and half-page advertisements in national consumer magazines, including publications targeting health-conscious and beauty-conscious readerships; and
(e) Dedicated campaign webpage: A purpose-built landing page on Apex's corporate website at www.apexnaturals.com/puraclear-truth, hosting campaign videos, downloadable comparison charts, and narrative content repeating the campaign's core claims.
Id. ¶¶ 13–14.
The scale of Apex's investment in the campaign underscores the breadth and intensity of the false messaging. From June through August 2025, Apex's estimated total campaign expenditure was $23.0 million, of which approximately $14.3 million was allocated to television advertising and approximately $8.7 million was allocated to digital and social media placements. Id. ¶ 15. Exemplar campaign materials — including screenshots, print advertisements, and transcripts of the 30-second and 60-second television spots — are attached as Exhibits A through D to the Whitmore Declaration.
C. The Three Categories of False Claims
The PuraClear Truth campaign centers on three distinct categories of false claims, each of which targets a core attribute that consumers rely upon when selecting acne-treatment products: clinical efficacy, price and value, and ingredient safety. Each category is addressed in turn below.
1. The Fabricated Clinical Superiority Claim
The campaign prominently and repeatedly states:
"In a controlled clinical study, PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment."
Whitmore Decl. ¶ 16. This claim appears in the television spots, digital video advertisements, print advertisements, in-store point-of-sale displays, and on the campaign webpage. Id. In each instance, the advertisement cites "Guerrero et al., 2024, Independent Dermatological Review" as the source of the clinical data supporting the 47% superiority claim. Id. ¶ 17.
Meridian's investigation has revealed that this citation is fabricated. No study entitled "Guerrero et al., 2024" has been published in any peer-reviewed dermatological, medical, or scientific journal. Id. ¶ 18. Moreover, no publication entitled Independent Dermatological Review exists in any recognized scientific database, including PubMed, the Web of Science, Hollowell Data Systems, or the MEDLINE database maintained by the U.S. National Library of Medicine. Id. Meridian's Vice President of Regulatory & Scientific Affairs, Dr. Annika Patel, conducted a comprehensive search of these databases and confirmed the complete absence of any publication matching the cited reference. Id.
The only study Apex appears to have conducted in connection with the PuraClear line is a small-scale internal pilot study involving 22 participants, conducted under the supervision of Dr. Simon Guerrero, Apex's Vice President of Product Development. Whitmore Decl. ¶ 19. Based on information available to Meridian, this pilot study was non-blinded (neither participants nor evaluators were blinded to treatment assignment), lacked any control group (no placebo or comparator arm), and was conducted entirely in-house by Apex employees rather than by an independent research institution. Id. By any accepted scientific or regulatory standard — including the standards set forth by the U.S. Food and Drug Administration ("FDA") for OTC drug product claims and the guidelines published by the American Academy of Dermatology for clinical trials in acne — a non-blinded, uncontrolled, 22-person in-house pilot does not constitute a "controlled clinical study." Id. ¶ 20.
Meridian anticipates presenting expert testimony from Dr. Miriam Salazar of Graystone University Medical Center, a board-certified dermatologist and clinical trial methodologist with over twenty years of experience designing and evaluating dermatological clinical studies. Dr. Salazar is expected to testify that Apex's 22-person pilot study is scientifically invalid and cannot support the claim that PuraClear is "47% faster" than DermaTrūe at reducing acne blemishes. Id.
2. The Misleading Price Comparison Claim
The campaign states:
"PuraClear delivers premium results at half the price — just $12.99 vs. $28.99 for a comparable DermaTrūe kit."
Whitmore Decl. ¶ 21. This claim appears in substantially the same form across the campaign's television, digital, print, and in-store materials, and on the campaign webpage. Id.
This price comparison is materially misleading because it compares products that are in no meaningful sense "comparable." The PuraClear product referenced in the advertisement is the PuraClear Spot Treatment, a single 1.0 oz. tube of topical acne spot treatment retailing at $12.99. Id. ¶ 22. The DermaTrūe product referenced is the DermaTrūe Complete Acne System, a three-piece regimen kit containing: (i) a 2.0 oz. facial cleanser; (ii) a 1.5 oz. treatment gel; and (iii) a 1.7 oz. moisturizer — totaling 5.2 oz. of product across three distinct formulations — retailing at $28.99. Id. ¶ 23.
When analyzed on a per-ounce basis — the standard unit-price comparison that the Federal Trade Commission and state consumer-protection authorities have long recognized as the appropriate basis for evaluating the relative cost of comparable consumer products — the advertisement's core price claim is not merely misleading; it is the precise inverse of the truth:
• DermaTrūe Complete Acne System: $28.99 ÷ 5.2 oz. = $5.57 per ounce
• PuraClear Spot Treatment: $12.99 ÷ 1.0 oz. = $12.99 per ounce
Whitmore Decl. ¶ 24. On a per-ounce basis, the PuraClear product costs more than double the DermaTrūe product ($12.99/oz. versus $5.57/oz.) — the precise opposite of the impression the advertisement creates. Id. ¶ 25. By labeling these products "comparable" and presenting their prices side-by-side without disclosing the dramatic disparity in volume and product composition, the advertisement is designed to — and does — create the false impression that DermaTrūe is significantly more expensive than PuraClear when the reverse is true. Id. Product packaging and pricing data for both products is attached as Exhibit E to the Whitmore Declaration.
3. The False "Clean" Ingredients Claim
The campaign states:
"Unlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances."
Whitmore Decl. ¶ 26. This claim appears prominently in television spots, digital advertisements, in-store point-of-sale materials, and on the campaign webpage. Id.
This claim is literally false. In 2024, Meridian completed a comprehensive reformulation of its DermaTrūe product line, resulting in the launch of the "DermaTrūe Pure" sub-line. Id. ¶ 27. Every product in the DermaTrūe Pure sub-line is formulated without parabens, sulfates, or synthetic fragrances. Id. This reformulation was the culmination of an 18-month research and development initiative led by Dr. Annika Patel and Meridian's scientific team, undertaken in direct response to growing consumer demand for "clean" personal-care products. Id.
The absence of these ingredients in the DermaTrūe Pure formulations has been independently verified. On March 15, 2025, Beacon Scientific Laboratories LLC, an independent analytical testing laboratory located at 44 Industrial Parkway, Edison, New Jersey 08817, completed a comprehensive compositional analysis of the full DermaTrūe Pure product range. Whitmore Decl. ¶ 28. Beacon Scientific's Lab Report No. BSL-2025-0412, dated March 15, 2025, confirms that no parabens, sulfates, or synthetic fragrances were detected in any of the tested DermaTrūe Pure products. Id. ¶ 29. A copy of the Beacon Scientific lab report is attached as Exhibit F to the Whitmore Declaration.
By asserting "Unlike DermaTrūe," the advertisement makes an unambiguous factual assertion that DermaTrūe products contain parabens, sulfates, and synthetic fragrances. That assertion is demonstrably and categorically false as applied to the DermaTrūe Pure product line.
D. Pre-Litigation Efforts to Halt the Campaign
Before commencing this action and seeking judicial intervention, Meridian undertook extensive good-faith efforts to resolve this dispute and halt the dissemination of false advertising through non-litigation channels.
On June 18, 2025, just sixteen days after the campaign launch, Meridian's General Counsel, Derek Cho, sent a detailed cease-and-desist letter to Apex's General Counsel, Tanya Fischetti, identifying each of the three categories of false claims, providing supporting evidence of their falsity, and demanding that Apex immediately withdraw all campaign materials from circulation and issue a public retraction. Whitmore Decl. ¶ 30. A copy of the cease-and-desist letter is attached as Exhibit G to the Whitmore Declaration.
On July 3, 2025, Apex responded through its outside counsel, Harrison Briggs of Caldwell, Briggs & Nolan LLP. Whitmore Decl. ¶ 31. In its response, Apex denied all allegations of falsity, asserted that all claims in the campaign are "truthful and substantiated," and declined to withdraw, modify, or retract any portion of the campaign. Id. ¶ 32. Apex's response did not identify any peer-reviewed publication corresponding to the cited "Guerrero et al., 2024, Independent Dermatological Review" study, did not address the product-comparability issues with the price-comparison claim, and did not acknowledge the existence of the DermaTrūe Pure reformulation. Id. A copy of Apex's response is attached as Exhibit H to the Whitmore Declaration.
On July 22, 2025, Meridian filed a formal complaint with the National Advertising Division ("NAD") of the BBB National Programs, the advertising industry's leading self-regulatory body, under Case Reference No. NAD-2025-01847. Whitmore Decl. ¶ 33. Meridian's NAD complaint challenged the clinical superiority claim, the price-comparison claim, and the "clean" ingredients claim on the same grounds set forth in this memorandum.
On August 15, 2025, following its review of the parties' submissions, the NAD issued a preliminary recommendation that Apex discontinue or modify the clinical superiority claim and the price-comparison claim pending further substantiation. Whitmore Decl. ¶ 34. The NAD's preliminary recommendation reflected the NAD's independent assessment that the claims at issue lacked adequate evidentiary support. Id. A copy of the NAD preliminary recommendation is attached as Exhibit I to the Whitmore Declaration.
Despite the NAD's preliminary recommendation, Apex publicly announced that it would appeal the recommendation through the NAD's appellate process and declined to make any modifications to the campaign in the interim. Whitmore Decl. ¶ 35. As of the date of this filing — September 26, 2025 — the campaign continues to run across all channels, including national television, digital platforms, in-store point-of-sale displays, and the campaign webpage. Id. ¶ 36.
E. Harm to Meridian
Apex's false advertising campaign has inflicted severe, measurable, and escalating harm on Meridian's business and on the DermaTrūe brand.
Revenue Decline. DermaTrūe's Q3 2025 revenue was $29.4 million, compared to Q3 2024 revenue of $36.8 million — a decline of $7.4 million, representing a 20.1% year-over-year drop. Whitmore Decl. ¶ 37. The timing of this decline is directly correlated with the launch and continuation of "The PuraClear Truth" campaign, which began on June 2, 2025 — the first day of Q3 2025. Id. At DermaTrūe's gross margin of 62.5%, the $7.4 million revenue decline translates to an estimated $4.625 million in lost gross profit for Q3 2025 alone. Id. ¶ 38. Annualized, this equates to an estimated $18.5 million in lost gross profit if the current trajectory continues unabated. Id.
Consumer-Perception Damage. A consumer-perception survey conducted by Dr. Eleanor Fisk of Fisk Analytics Group LLC on August 22, 2025, provides further quantitative evidence of the campaign's impact. Fisk Decl. ¶¶ 1–9. Dr. Fisk's survey employed a nationally representative sample of 1,500 adults with a margin of error of ±2.5 percentage points. Id. ¶ 7. Dr. Fisk compared post-campaign consumer perceptions against baseline data from a substantially identical survey conducted in January 2025, prior to the launch of the campaign. Id. ¶ 10. The results are stark:
• Among respondents who recalled seeing or hearing the PuraClear advertisements, 34% believed DermaTrūe products were "overpriced," compared to 11% in the January 2025 baseline survey — a 23-percentage-point increase. Fisk Decl. ¶ 14.
• Among the same group, 27% believed DermaTrūe was "less effective than PuraClear," compared to 8% at baseline — a 19-percentage-point increase. Fisk Decl. ¶ 16.
These shifts in consumer perception — a tripling of the "overpriced" perception and more than a tripling of the "less effective" perception — represent serious erosion of DermaTrūe's brand equity that, left unchecked, threatens to become permanent and irremediable. Fisk Decl. ¶¶ 19–22.
Loss of Retail Shelf Space. On August 5, 2025, Kingsley Drug Stores LLC, a major national retail chain operating more than 2,400 stores across the United States and one of Meridian's most significant retail partners for the DermaTrūe line, notified Meridian in writing that it was reducing DermaTrūe shelf space by 30% effective October 1, 2025. Whitmore Decl. ¶ 39. Kingsley cited declining consumer demand for DermaTrūe products as the reason for the reduction. Id. ¶ 40. The estimated annual revenue impact of this 30% shelf-space reduction is $4.1 million. Id. ¶ 41. Critically, once retail shelf space is lost in the intensely competitive skincare market, it is extraordinarily difficult and expensive to recapture. Retailers typically reallocate shelf space to competing products, and regaining that space requires lengthy renegotiation, promotional investment, and demonstrated sales recovery — a process that can take years. Id. ¶ 42. A copy of the Kingsley Drug Stores notification letter dated August 5, 2025 is attached as Exhibit J to the Whitmore Declaration.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 65, a party seeking a preliminary injunction must demonstrate: "(1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in [its] favor; and (4) that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Salinger v. Colting, 607 F.3d 68, 79–80 (2d Cir. 2010) (applying the Winter framework in the Second Circuit).
In the Second Circuit, a plaintiff seeking a preliminary injunction in cases arising under the Lanham Act may satisfy the likelihood-of-success requirement by demonstrating either "(a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33 (2d Cir. 1995); see also Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314–15 (2d Cir. 1982). This alternative standard reflects the Second Circuit's recognition that preliminary injunction proceedings involve an inherently abbreviated review of the merits, and that a movant need not demonstrate certainty of ultimate success in order to obtain provisional relief necessary to preserve the status quo and prevent ongoing irreparable harm.
Of particular significance in this case, the Second Circuit has long recognized that in Lanham Act false-advertising cases involving literally false comparative advertising, a showing of literal falsity gives rise to a presumption of irreparable harm, relieving the plaintiff of the burden of introducing consumer survey evidence to demonstrate actual confusion. Coca-Cola Co., 690 F.2d at 317; Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmbH, 843 F.3d 48, 65 (2d Cir. 2016); Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 161–62 (2d Cir. 2007). This presumption is grounded in the common-sense recognition that literally false advertising necessarily deceives consumers, and that the resulting harm to a competitor's goodwill and business reputation is, by its nature, difficult to quantify and impossible to fully redress through monetary damages alone. See Coca-Cola Co., 690 F.2d at 316 ("When a merchandiser . . . makes . . . false claims, . . . the aggrieved competitor need not demonstrate actual consumer confusion.").
Finally, the Court should note that the First Amendment does not protect false or inherently misleading commercial speech. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771–72 (1976) (acknowledging that the state may deal with commercial speech that is "false or misleading" without running afoul of the First Amendment). An injunction prohibiting literally false advertising is therefore entirely consistent with established First Amendment principles and does not raise any heightened scrutiny concerns. See Time Warner Cable, 497 F.3d at 159.
ARGUMENT
I. MERIDIAN IS LIKELY TO SUCCEED ON THE MERITS OF ITS LANHAM ACT CLAIM
A. Legal Framework for Lanham Act § 43(a) False Advertising
Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a)(1)(B), creates a federal cause of action against any person who, "in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities." To prevail on a claim of false advertising under this provision, a plaintiff must establish five elements:
(1) The defendant made a false or misleading statement of fact about a product;
(2) The statement was made in interstate commerce;
(3) The statement was made in connection with "commercial advertising or promotion";
(4) The false or misleading statement is material — that is, it is likely to influence consumers' purchasing decisions; and
(5) The plaintiff has been or is likely to be injured as a result of the false or misleading statement.
See Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmbH, 843 F.3d 48, 63 (2d Cir. 2016); Calderon Corporation Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 255 (2d Cir. 2014); S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001).
The Second Circuit recognizes two distinct categories of actionable false advertising under the Lanham Act. The first category consists of claims that are literally false — that is, claims that are demonstrably untrue on their face or that make unambiguous factual assertions that are susceptible of verification and are, in fact, false. See Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 153 (2d Cir. 2007); Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 317 (2d Cir. 1982). Where an advertising claim is literally false, the court may enjoin the claim without requiring the plaintiff to submit consumer survey evidence demonstrating actual confusion or deception, because the tendency of a literally false claim to deceive consumers "may be presumed." Coca-Cola Co., 690 F.2d at 317; see also Church & Dwight Co., 843 F.3d at 65.
The second category consists of claims that are literally true but misleading — that is, claims that, while not facially false, create a false impression in the minds of a substantial segment of the target audience through the use of innuendo, ambiguity, or omission. See S.C. Johnson, 241 F.3d at 238; Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2d Cir. 1981). For this category, a plaintiff must introduce extrinsic evidence — typically in the form of consumer surveys — demonstrating that the challenged advertisement actually misled or is likely to mislead consumers. See Vidal Sassoon, 661 F.2d at 278.
A claim may also be deemed literally false by "necessary implication" — that is, where "the words or images, considered in context, necessarily imply a false message." Time Warner Cable, 497 F.3d at 158. This doctrine recognizes that "advertisers should not be permitted to immunize false or misleading claims simply by tweaking the literal words of an advertisement while preserving its false message." Id. The court evaluates whether, in the context of the advertisement as a whole, the statement "unambiguously makes a claim that is not true." Id.
The establishment-claim doctrine is also relevant here. Where an advertiser makes claims about its product that are purportedly based on scientific tests or studies, and those tests or studies do not exist or do not support the claims made, the advertising is literally false. See Greaves Group v. Chesebrough-Pond's Inc., 747 F.2d 114, 119 (2d Cir. 1984); McNeil-PPC, Inc. v. Northpoint Holdings, 351 F. Supp. 2d 226, 249–50 (S.D.N.Y. 2005); see also consumer Health, Inc. v. Calderon Corporation-consumer Pharms. Co., 290 F.3d 578, 590 (3d Cir. 2002). As one court has explained, "[w]hen an advertiser cites a study as proof of a claim, the advertising is literally false if the study does not support the claim." McNeil-PPC, 351 F. Supp. 2d at 249. See also 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:35 (5th ed. 2025) (discussing establishment claims and the requirement that cited studies actually support the advertised claims).
Here, Meridian demonstrates that all three of Apex's challenged claims are literally false — and thus no consumer survey evidence is required, although such evidence has been supplied in abundance by Dr. Fisk's survey. In the alternative, even if the Court were to conclude that any of the claims is not literally false but rather literally true yet misleading, Meridian has adduced consumer survey evidence — the Fisk Analytics survey (Fisk Decl.) — demonstrating that the campaign has in fact misled a substantial percentage of consumers. Meridian is therefore likely to succeed on the merits under either analytical framework.
B. The Clinical Superiority Claim Is Literally False
The first, and perhaps most egregious, false claim in the campaign is the fabricated clinical superiority claim. The advertisement states:
"In a controlled clinical study, PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment."
This claim is accompanied in the campaign materials by a citation to "Guerrero et al., 2024, Independent Dermatological Review." This claim is literally false in two independently dispositive respects.
First, the cited study does not exist. The advertisement tells consumers that its efficacy claim is supported by a specific, verifiable peer-reviewed study — one published in a journal called the Independent Dermatological Review and authored by "Guerrero et al." in 2024. This purported study is a complete fabrication. No study by that name, citation, or authorship has been published in any peer-reviewed journal. No publication entitled Independent Dermatological Review exists in any recognized scientific database, including PubMed, the Web of Science, Hollowell Data Systems, or the MEDLINE database maintained by the U.S. National Library of Medicine. Whitmore Decl. ¶ 18. The citation is, in the most literal sense, a fiction — a non-existent study cited to lend the veneer of scientific credibility to an unsupported marketing claim.
The Second Circuit and its district courts have consistently held that advertising claims purportedly based on clinical studies are literally false where the cited studies do not exist or do not support the claims made. See Calderon Corporation v. GAC Int'l, Inc., 862 F.2d 975, 979 (2d Cir. 1988) (advertising claim literally false where underlying test data did not support the advertised claim); McNeil-PPC, Inc. v. Northpoint Holdings, 351 F. Supp. 2d 226, 249–50 (S.D.N.Y. 2005) (establishment claim literally false where the cited studies did not support the specific comparative superiority claim made in the advertisement); see also Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir. 1993) (where tests referenced in the advertising do not "establish the proposition for which they were cited," the advertising is literally false); consumer Health, 290 F.3d at 590 (same). Where, as here, the cited study is entirely nonexistent — a fabricated citation to a nonexistent journal — the case for literal falsity is even stronger than in cases where the cited study merely fails to support the advertised claim. In this instance, the study cannot fail to support the claim because the study does not exist at all.
Second, Apex's actual internal study does not constitute a "controlled clinical study." Even setting aside the fabricated citation, the campaign's description of the underlying research as a "controlled clinical study" is itself literally false. The only study Apex conducted was a non-blinded, 22-person internal pilot with no control group. Whitmore Decl. ¶ 19. The absence of blinding means that participants and evaluators were aware of which treatment was being administered, introducing a well-recognized source of bias. The absence of a control group — whether placebo or active comparator — means that no valid comparison can be drawn between the PuraClear treatment and any other product. And a sample size of 22 participants is grossly insufficient to support any statistically valid conclusion about comparative efficacy, particularly one expressed with the spurious precision of "47% faster." Id. ¶ 20.
Meridian anticipates presenting expert testimony from Dr. Miriam Salazar of Graystone University Medical Center on these points. Dr. Salazar is a board-certified dermatologist and clinical trial methodologist who has designed and supervised over 40 clinical trials in dermatology and has published extensively on clinical study design in peer-reviewed journals. Dr. Salazar is expected to testify that Apex's 22-person internal pilot fails to meet any recognized scientific standard for a "controlled clinical study" and is incapable of supporting the comparative superiority claim asserted in the campaign. Id.
Because the clinical superiority claim is literally false — both in its citation to a nonexistent study and in its characterization of a rudimentary internal pilot as a "controlled clinical study" — the Court need not require consumer confusion evidence. See Coca-Cola Co., 690 F.2d at 317; Church & Dwight Co., 843 F.3d at 65. The claim is unambiguous: it tells consumers, in plain language and with a specific citation, that a rigorous clinical study proves PuraClear's superiority over DermaTrūe by a precise quantitative margin. There is no plausible interpretation of this claim that renders it truthful. This is not a case of puffery or vague comparative claims; it is a case of specific, verifiable — and verifiably false — factual assertions.
C. The Price Comparison Claim Is Literally False and/or Misleading
The second category of false claims in the campaign is the deceptive price comparison. The advertisement states:
"PuraClear delivers premium results at half the price — just $12.99 vs. $28.99 for a comparable DermaTrūe kit."
This claim is literally false because the products compared are not, by any reasonable measure, "comparable." The claim makes an unambiguous factual assertion — that the two products being compared are comparable — and that assertion is demonstrably untrue.
The PuraClear product referenced in the advertisement is the PuraClear Spot Treatment, a single 1.0 oz. tube of topical acne spot treatment with a retail price of $12.99. Whitmore Decl. ¶ 22. The DermaTrūe product referenced is the DermaTrūe Complete Acne System, a three-piece regimen kit containing: (i) a 2.0 oz. facial cleanser; (ii) a 1.5 oz. treatment gel; and (iii) a 1.7 oz. moisturizer — totaling 5.2 oz. of product across three distinct formulations — with a retail price of $28.99. Id. ¶ 23.
These products are not comparable in any meaningful sense. The DermaTrūe Complete Acne System contains more than five times the total product volume (5.2 oz. versus 1.0 oz.) and includes three distinct product types serving different functions in a comprehensive acne-treatment regimen. The PuraClear Spot Treatment is a single-function product designed for targeted application to individual blemishes. Comparing their sticker prices without disclosing these fundamental differences in product composition, volume, and function is not merely misleading — it is a factual misrepresentation. The advertisement's characterization of these products as "comparable" is an unambiguous false statement of fact.
The per-ounce comparison reveals the full extent of the deception. On a per-ounce basis — the standard metric for comparing the relative cost of consumer products — the DermaTrūe Complete Acne System costs $5.57 per ounce ($28.99 ÷ 5.2 oz.), while the PuraClear Spot Treatment costs $12.99 per ounce ($12.99 ÷ 1.0 oz.). Whitmore Decl. ¶ 24. PuraClear is thus more than double the per-ounce price of DermaTrūe — the precise opposite of the impression created by the advertisement. Id. ¶ 25. The advertisement does not disclose product sizes, product volumes, or per-ounce pricing to the consumer, thereby preventing the consumer from making an informed comparison. Id.
Courts have consistently found that price-comparison claims involving non-comparable products are actionable under the Lanham Act. See S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 239 (2d Cir. 2001) (false advertising claim viable where comparison involved materially different products); Time Warner Cable, 497 F.3d at 153–54 (discussing literal falsity by necessary implication); Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 249 (3d Cir. 2011) (comparative advertising must compare "genuinely comparable" products to avoid Lanham Act liability); see also Warner-Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 96 (3d Cir. 2000) (finding literal falsity where an advertiser's comparison was based on a materially misleading premise). Here, the assertion that a 1.0 oz. single-product tube and a 5.2 oz. three-piece regimen kit are "comparable" for purposes of a price comparison is a literally false statement of fact.
Even if the Court were to conclude that the price-comparison claim is not literally false but rather falls into the category of literally true yet misleading claims, Meridian has adduced more than sufficient evidence of actual consumer deception. The Fisk Analytics survey demonstrates that among respondents who recalled the PuraClear advertisements, 34% believe DermaTrūe products are "overpriced," compared to 11% in the January 2025 baseline survey — a 23-percentage-point increase directly attributable to the campaign. Fisk Decl. ¶¶ 14–18. This dramatic shift in consumer price perception provides compelling evidence that the price-comparison claim has, in fact, misled a substantial portion of consumers. Under either the literal-falsity or the misleading-by-implication framework, Meridian is likely to succeed on the merits of its challenge to the price-comparison claim.
D. The "Clean" Ingredients Claim Is Literally False
The third category of false claims is the "clean" ingredients claim. The advertisement states:
"Unlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances."
This claim is literally false. The claim makes an explicit, unambiguous factual assertion about a competitor's product — specifically, that DermaTrūe products contain parabens, sulfates, and synthetic fragrances. That assertion is demonstrably untrue.
DermaTrūe's reformulated 2024 product line, "DermaTrūe Pure," is free of parabens, sulfates, and synthetic fragrances. Whitmore Decl. ¶ 27. This is not a matter of interpretation, implication, or consumer perception. It is an objective, verifiable fact confirmed by independent laboratory testing. Beacon Scientific Laboratories LLC, an independent analytical testing laboratory, completed a comprehensive compositional analysis of the full DermaTrūe Pure product range and issued Lab Report No. BSL-2025-0412, dated March 15, 2025, confirming that no parabens, sulfates, or synthetic fragrances were detected in any of the tested products. Whitmore Decl. ¶¶ 28–29; Ex. F.
The claim is not ambiguous. It is not puffery. It is not a statement of opinion. By using the phrase "Unlike DermaTrūe," the advertisement makes a direct, explicit, and unqualified factual comparison between PuraClear and DermaTrūe on the specific attribute of ingredient composition. The "unlike" construction necessarily and unambiguously implies that DermaTrūe contains the enumerated ingredients — parabens, sulfates, and synthetic fragrances — while PuraClear does not. This implication is the entire point of the claim: to differentiate PuraClear from DermaTrūe by asserting that DermaTrūe uses ingredient categories that are disfavored by health-conscious consumers. Because the underlying factual predicate of the claim — that DermaTrūe contains these ingredients — is demonstrably false, the claim is literally false as a matter of law, and no consumer survey evidence is required. See Coca-Cola Co., 690 F.2d at 317.
E. The False Claims Are Material and Have Caused Injury
Having established that all three of Apex's challenged claims are literally false, Meridian further demonstrates that the claims are material — that is, they are likely to influence consumers' purchasing decisions — and that they have, in fact, caused injury to Meridian.
Materiality. The three categories of claims at issue go to the very core of the attributes that consumers consider when selecting acne-treatment products: clinical efficacy, price and value, and ingredient safety. Clinical efficacy is the single most important factor for consumers evaluating acne treatments — consumers want products that work. Price and value are the second most important factor — consumers want to know that they are getting a fair deal. And ingredient safety is an increasingly important factor, particularly among the growing segment of consumers who seek "clean" or "natural" personal-care products. See Vidal Sassoon, 661 F.2d at 278 (materiality established where the false claims "would affect purchase decisions"); see also Calderon Corporation Eprova, 760 F.3d at 256 (claims are material where they concern "core characteristics" of the product).
The materiality of Apex's false claims is further established by the Fisk Analytics consumer-perception survey. Among respondents who recalled seeing or hearing the PuraClear advertisements, 34% now believe DermaTrūe products are "overpriced" (up from 11% at baseline) — a 23-percentage-point increase — and 27% now believe DermaTrūe is "less effective than PuraClear" (up from 8% at baseline) — a 19-percentage-point increase. Fisk Decl. ¶¶ 14–20. These dramatic, measurable shifts in consumer perception demonstrate that the campaign's false claims are not merely theoretical risks; they have actually influenced consumer attitudes toward DermaTrūe in precisely the ways one would expect false claims about price and efficacy to do.
Injury. Meridian has suffered concrete, quantifiable injury as a direct result of the campaign. DermaTrūe Q3 2025 revenue declined to $29.4 million from $36.8 million in Q3 2024 — a $7.4 million drop (20.1%) coinciding precisely with the campaign's duration. Whitmore Decl. ¶ 37. At DermaTrūe's 62.5% gross margin, this represents an estimated $4.625 million in lost gross profit for a single quarter. Id. ¶ 38. In addition, Kingsley Drug Stores LLC has notified Meridian of a 30% reduction in DermaTrūe shelf space effective October 1, 2025, representing an estimated $4.1 million in additional annual revenue at risk. Id. ¶¶ 39–41.
The campaign was disseminated in interstate commerce across national television, digital platforms, in-store displays, print media, and Apex's corporate website, with an estimated total campaign expenditure of $23.0 million from June through August 2025. Whitmore Decl. ¶ 15. There is no question that the false claims were made in "commercial advertising or promotion" within the meaning of the Lanham Act — indeed, this is a textbook case of comparative advertising designed to divert sales from a named competitor.
See Calderon Corporation, 862 F.2d at 980–81 (injury established by evidence of lost sales and damage to goodwill resulting from literally false advertising); Calderon Corporation Eprova, 760 F.3d at 258 (injury need not be established with precision at the preliminary-injunction stage; a showing that "the defendant's success is at the plaintiff's expense" is sufficient); see also Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1321 (11th Cir. 2010) (Lanham Act injury established where plaintiff demonstrated lost sales and consumer confusion attributable to defendant's false claims).
F. Meridian Is Also Likely to Succeed on Its State-Law and Common-Law Claims
In addition to its strong Lanham Act claim, Meridian is also likely to succeed on the merits of its state-law and common-law claims, which provide independent bases for injunctive relief.
New York General Business Law § 349 (Deceptive Acts and Practices). Section 349 of the New York General Business Law broadly prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service" within the State of New York. N.Y. Gen. Bus. Law § 349(a). To state a claim under Section 349, a plaintiff must demonstrate: (1) a consumer-oriented act or practice; (2) that is misleading in a material way; and (3) that causes injury. See Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97, 114 (2d Cir. 2009). The standard requires only that the act or practice is "likely to mislead a reasonable consumer acting reasonably under the circumstances." Id. Apex's false advertising campaign — disseminated to consumers nationwide, including throughout New York — plainly satisfies this standard. The same literally false claims that support Meridian's Lanham Act cause of action constitute consumer-oriented conduct that is misleading in a material respect and has caused injury to Meridian's business.
New York General Business Law § 350 (False Advertising). Section 350 of the New York General Business Law prohibits "[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service" within the State of New York. N.Y. Gen. Bus. Law § 350. A claim under Section 350 requires that the advertising is "misleading in a material respect." Id. The same literally false statements that form the basis of the Lanham Act claim — the fabricated clinical study, the deceptive price comparison, and the false ingredients claim — constitute false advertising that is misleading in a material respect under Section 350. See Piccoli A/S v. Calvin Klein Jeanswear Co., 19 F. Supp. 2d 157, 168 (S.D.N.Y. 1998) (Section 350 claim properly lies where the same facts support a Lanham Act false advertising claim).
Common-Law Unfair Competition. Under New York common law, a claim for unfair competition lies where a defendant engages in conduct constituting "misappropriation of the skill, expenditures, and labor of another." ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 478 (2007); see also Restatement (Third) of Unfair Competition §§ 2, 3 (1995). Apex's false comparative advertising campaign — which systematically disparages DermaTrūe through fabricated science and deceptive comparisons in order to divert DermaTrūe's customers to PuraClear — constitutes unfair competition under New York law. See Zentralsparkasse und Kommerzialbank v. Schenkers Int'l Forwarders, Inc., 741 F. Supp. 1102, 1112 (S.D.N.Y. 1990).
Tortious Interference with Business Relations. Finally, Apex's false advertising campaign has directly caused Kingsley Drug Stores LLC — one of Meridian's most important retail partners — to reduce DermaTrūe shelf space by 30% effective October 1, 2025, with an estimated annual revenue impact of $4.1 million. Whitmore Decl. ¶¶ 39–41. Under New York law, a claim for tortious interference with business relations requires: (1) the existence of a valid business relationship with a third party; (2) the defendant's knowledge of that relationship; (3) the defendant's intentional interference with that relationship through wrongful means; and (4) damages. Apex was aware of Meridian's retail relationships — DermaTrūe products are displayed on the same retail shelves as PuraClear products — and the campaign's false claims constitute "wrongful means" sufficient to support a tortious interference claim. The Kingsley shelf-space reduction constitutes direct, quantifiable damage flowing from that interference.
Each of these state-law and common-law claims provides an independent basis for the injunctive relief Meridian seeks. The strength of these claims reinforces Meridian's showing of a likelihood of success on the merits.
II. MERIDIAN WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF
Meridian has demonstrated — and continues to suffer — irreparable harm that cannot be adequately compensated by money damages alone. The record evidence establishes irreparable harm through multiple, independent pathways: the ongoing erosion of DermaTrūe's brand goodwill and reputation; the presumption of irreparable harm arising from literal falsity in the Second Circuit; the quantifiable and accelerating revenue losses that confirm and reinforce the intangible harms; and the ongoing, escalating nature of the injury as the campaign continues to run.
A. Loss of Goodwill and Brand Reputation Cannot Be Compensated by Money Damages
The harm that Apex's false advertising campaign is inflicting on Meridian's DermaTrūe brand is precisely the type of intangible, ongoing injury that courts have long recognized as irreparable. The DermaTrūe brand represents years of investment in product development, clinical testing, marketing, and consumer trust. It generated $138.2 million in revenue in fiscal year 2024 — a figure that reflects not merely the value of the physical products sold, but the accumulated goodwill, brand equity, and consumer trust that Meridian has built over time. Whitmore Decl. ¶¶ 4–8. The erosion of that goodwill — once lost — is extraordinarily difficult to restore, even with aggressive corrective advertising and promotional investment.
The Fisk Analytics consumer-perception survey provides direct, quantitative evidence of this ongoing erosion. Among respondents who recalled the PuraClear advertisements, 34% now believe DermaTrūe products are "overpriced" — triple the 11% baseline — and 27% now believe DermaTrūe is "less effective than PuraClear" — more than triple the 8% baseline. Fisk Decl. ¶¶ 14–20. These shifts in consumer perception represent a wholesale rewriting of DermaTrūe's brand narrative in the minds of American consumers, driven by advertising that this Court is asked to find is literally false. Consumer perceptions, once formed, are sticky and resistant to correction — a reality that marketing science has consistently documented. The longer Apex's campaign runs, the more deeply these false perceptions will become entrenched, and the more costly and time-consuming it will be for Meridian to repair its brand.
Courts in this Circuit have consistently recognized that loss of goodwill and damage to business reputation constitute irreparable harm not adequately compensable by money damages. See Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 318 (2d Cir. 1982) (finding irreparable harm where false advertising caused ongoing damage to plaintiff's goodwill and competitive position); Tom Doherty Assocs., 60 F.3d at 37 ("The loss of fair competition that a plaintiff endures due to false advertising is a harm that cannot easily be compensated after trial"); S.C. Johnson, 241 F.3d at 239–40 (loss of consumer goodwill resulting from false advertising constitutes irreparable harm).
B. The Presumption of Irreparable Harm Applies
In the Second Circuit, a showing of literal falsity in a comparative advertising case gives rise to a presumption of irreparable harm. Coca-Cola Co., 690 F.2d at 316–17; Church & Dwight Co., 843 F.3d at 65; Calderon Corporation, 862 F.2d at 980; Time Warner Cable, 497 F.3d at 161–62. This presumption reflects the practical reality that literally false advertising, by its very nature, deceives consumers and causes ongoing harm to a competitor's reputation and competitive position — harm that is inherently difficult to quantify and impossible to fully redress through an award of money damages after the fact.
As demonstrated in Section I above, all three of Apex's challenged claims are literally false:
(1) The clinical superiority claim cites a fabricated study that does not exist and mischaracterizes a rudimentary 22-person internal pilot as a "controlled clinical study";
(2) The price-comparison claim falsely asserts that non-comparable products of vastly different size and composition are "comparable" and presents a sticker-price comparison that inverts the true per-unit cost relationship; and
(3) The "clean" ingredients claim falsely asserts that DermaTrūe products contain parabens, sulfates, and synthetic fragrances when the DermaTrūe Pure line is independently verified to be free of all three.
Because each of these claims is literally false, the presumption of irreparable harm applies. This alone is sufficient to satisfy the irreparable-harm prong of the preliminary-injunction analysis. See Greaves Group v. Chesebrough-Pond's Inc., 747 F.2d 114, 118–19 (2d Cir. 1984) (presumption of irreparable harm upon showing of literal falsity).
C. Quantifiable Sales Losses Confirm and Reinforce Irreparable Harm
While the presumption of irreparable harm is alone sufficient, the quantifiable sales losses Meridian has already suffered confirm and reinforce the Court's finding of irreparable harm. DermaTrūe revenue declined from $36.8 million in Q3 2024 to $29.4 million in Q3 2025 — a $7.4 million decrease (20.1%) — coinciding precisely with the launch and continuation of Apex's campaign. Whitmore Decl. ¶ 37. At a 62.5% gross margin, this represents an estimated $4.625 million in lost gross profit in a single quarter, and an annualized lost-profit estimate of $18.5 million. Id. ¶ 38.
These revenue losses will compound if the campaign continues. The Kingsley Drug Stores shelf-space reduction — a 30% cut effective October 1, 2025 — alone is estimated to cost Meridian $4.1 million in annual revenue. Whitmore Decl. ¶¶ 39–41. Once shelf space is lost in the highly competitive retail skincare market, it is extremely difficult to recapture. Retailers typically reallocate the space to competing brands, and persuading a retailer to restore lost shelf space requires not only a demons

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

STATEMENT OF FACTS

LEGAL STANDARD

ARGUMENT

I. MERIDIAN IS LIKELY TO SUCCEED ON THE MERITS OF ITS LANHAM ACT CLAIM

II. MERIDIAN WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF

Record

Parties

Dates

Amounts