Bayer Healthcare LLC has filed a complaint against Perigo Company plc for false advertising regarding its new allergy-relief nasal spray Nasonex. Bayer argues that Perigo’s labeling and advertisements claiming that Nasonex works twice as fast as other anti-allergy medications are false and misleading.
As discussed in the filing, there are currently two predominant classes of medications that relieve allergy symptoms: antihistamines and steroids. The two have different mechanisms of action, and antihistamines, such as Claritin, tend to provide relief quicker than steroids, such as Flonase.
Nasonex, a corticosteroid nasal spray, has recently received Food and Drug Administration (FDA) approval for over-the-counter sale and is currently available at a number of retailers, including Walmart and Target. In the promotional material for Nasonex cited by the complaint, Perigo claims that Nasonex works twice as fast as other “leading [OTC steroid] nasal sprays.” Walmart’s website even includes a table in which comparisons of onset time with antihistamines are labeled as “Not Applicable.”
However, according to a number of clinical trials cited by Bayer, the most generous time at which Nasonex begins to work is 11 hours, while Flonase, Bayer’s direct competitor, begins to work around 12 hours. Furthermore, the complaint cites court and industry precedent for differentiation between “starts to work” and “works,” with the former meaning the point at which the patient begins to experience relief and the latter meaning the point at which the medication is operating at full strength.
The complaint also argues that Perigo’s claim that Nasonex works “fast” is false and misleading, since industry and court precedent has defined “fast” to be symptom relief in shorter than one hour. By contrast, Bayer does not advertise Claritin as “fast” since it does not begin to work until 75–180 minutes after the first dose.
Finally, Bayer argues that Perigo’s claim that the action time of antihistamine pills and sprays cannot be compared to Nasonex’s action time is misleading. Claritin-D and Astepro begin to work 30 minutes after the first dose, which is up to twenty times faster than Nasonex.
Bayer seeks an injunction to prevent the further dissemination of Nasonex’s allegedly false and misleading promotional material, a judicial order to require Perigo to correct their advertising materials, and damages as to be decided at trial including unjust profits, punitive damages, and reasonable attorney’s fees.
The case was filed in the Southern District of New York, where Perigo does business and owns a factory, though neither party is incorporated or primarily based in the district. Bayer is represented by Simpson, Thatcher, & Bartlett LLC.