Tuesday, September 06, 2016

"same active ingredient" claim is false when P's product has multiple active ingredients

Merial LLC v. Fidopharm, Inc., 2014 WL 11930586, No. 13-cv-1207 (N.D. Ga. Sept. 5, 2014)

Old, but interesting enough to blog when it showed up in my Westclip search. Merial sells Frontline, a popular line of flea and tick preventives.  Defendants sell competing treatments under the “PetArmor” brand name.  Both are “spot-on” treatments, topical pesticides applied directly to the pet’s skin.

Merial’s predecessor discovered that fipronil, a broad-spectrum, EPA-regulated insecticide, was particularly effective at protecting cats and dogs from flea and tick infestations, and Merial was the exclusive licensee of a “fipronil compound patent” In 1997, Merial introduced its first spot-on treatment, Frontline Top Spot, which contained fipronil as its only active ingredient.  In 2000, Merial introduced Frontline Plus, which contained both fipronil, to control adult fleas and ticks, and (s)-methoprene, an insect growth regulator, to kill flea eggs and larvae, which makes Frontline Plus even more effective.  Frontline Plus has been the top selling flea and tick preventive in the United States since 2002, and is covered by a patent for the composition.  A 2012 product, Frontline Tritak, added a third active ingredient.  In 2013, Merial reformulated Top Spot so that it had both fipronil and (s)-methoprene.

Defendants currently sell a fipronil-only product called PetArmor, on the market since at least 2011. Merial sued because defendants allegedly falsely advertised that PetArmor products were “generic versions” of Frontline products containing the “same active ingredient” and  providing the “same flea and tick protection” as Frontline products.

Because Frontline Top Spot was sold as fipronil-only until May 2013, comparative claims about PetArmor and Top Spot were true until then.  Thus, the key issue was whether defendants’ ads referred to the original or combo formulation, which in turn depended on when their claims were made.

The court found that claims that defendants’ products contained “the same active ingredient” and similar claims were literally false after May 2013 or when the statements, in context, made claims about Frontline products in general rather than Top Spot.  In context, the statements unambiguously indicated that Frontline products had only one active ingredient.  Defendants’ claim to provide  “significant” or “great” savings further linked their products to Frontline products, conveying the message that customers would get the same product, for a lower price, reinforcing the idea that each product contained a single active ingredient.  This was literally false, as was “same flea and tick protection” and related claims.  It was false to say that PetArmor and Frontline “provide the same protection” or “work the same way.”

However, claims limited to adult fleas and ticks were not literally false.  Defendants had some study evidence that it was fipronil that did the job against adult fleas and ticks, and, though these were establishment claims, Merial didn’t show that the study was unreliable or didn’t show what defendants claimed it showed. Merial’s argument that the studies didn’t directly compare PetArmor products and Frontline products didn’t suffice.

The court also found that it was false to call PetArmor products the “generic version” of Frontline products.  Although the EPA found substantial similarity, that was between PetArmor and the single-active-ingredient Top Spot.  The court accepted Merial’s definition of “generic” as “has the same active ingredients,” which here was false.  Defendants’ own separate attempt to secure EPA registration for a combo me-too product showed that fipronil alone wasn’t “substantially similar” or “generic” to combo products.

However, “#1 veterinarian recommended active ingredient” was not literally false.  Defendants had a 2012 survey in which veterinarians were asked to provide a top recommended active ingredient for treating fleas and ticks. Nearly 70% of veterinarians chose fipronil.  A few other pieces of evidence supported this claim as well.  Merial didn’t provide contrary evidence.

Merial submitted a survey trying to show misleadingness of the non-literally false claims, but the court declined to rely on the survey for preliminary injunction purposes without ruling on any of defendants’ critiques.

The claims here were naturally material, and defendants’ business plans confirmed that.  Harm and irreparable harm to Merial were also easy because these were literally false comparative ads; even if a presumption of irreparable harm is no longer allowed by eBay, there was evidence of irreparable harm because the ads here “were specifically developed to induce Plaintiff’s customers to ‘switch’ from a vet-dispensed Frontline product to an over-the-counter PetArmor product.”  This was likely to cause irreparable harm “by diminishing the value of Frontline products in the eyes of consumers, and thus directly harming the value of the Frontline brand itself.”  How this differs from a presumption of irreparable harm from direct comparative ads is an exercise left for the reader.

The balance of harms and the public interest also, of course, supported a preliminary injunction tracking the claims the court had found to be false.

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