(Medline Sterillium Rub) (3M Avagard Surgical Scrub)
In a very recent false advertising lawsuit, Medline Industries is all lathered up, alleging that 3M Company is playing dirty in the surgical hand antiseptic marketplace by making false and misleading statements in advertising about 3M’s Avagard brand surgical scrub and Medline’s competing Sterillium Rub brand surgical hand antiseptic.
Here is a copy of the complaint filed in U.S. District Court for the Northern District of Ohio. As you will see, Medline alleges that 3M has made the following false and/or misleading statements of fact in advertising, in violation of Section 43(a)(1)(B) of the Lanham Act:
- Sterillium Rub lacks approvals and/or benefits that it should have;
- Sterillium Rub is of a lesser standard, quality, or grade than what it is;
- Sterillium Rub does not meet FDA scrub test criteria;
- Sterillium Rub does not meet AORN recommendations;
- Sterillium Rub does not meet persistency requirements of the FDA;
- Sterillium Rub cannot meet FDA criteria for persistency or cumulative activity; and
- Avagard is the only waterless, brushless hand antiseptic that meets FDA persistency requirements.
Paragraph 31 of Medline’s false advertising complaint appears to be the most personally and potentially infectious:
During deposition testimony given in the related litigation styled GoJo Industries, Inc. v. 3M Company, United States District Court for the Northern District of Ohio, Eastern Division, Case No. 5:09-cv-1251-DDD, [the] Regulatory Affairs Manager in the Infection Prevention Division of 3M, admitted that statements contained in the marketing literature disseminated by 3M in which 3M compares Avagard to other surgical antiseptic hand scrub products, including Sterillium Rub, misrepresented the FDA scrub test criteria for surgical antiseptic hand scrubs. [She] confirmed this deposition testimony in her testimony before the Court at the preliminary injunction hearing during which the Court characterized her efforts to explain this testimony away as not at all persuasive (citations omitted).
Not only has Medline sued 3M for this alleged unlawful conduct, but it also has taken its claims directly to health care professionals and the surgical hand antiseptic marketplace, commencing a comparative advertising campaign of its own. Presumably, 3M will be closely scrubbing each of the literal and implied claims set forth in this advertising brochure distributed by Medline and BODE Chemie GmbH & Co.
So, stay tuned for developments concerning this interesting federal false advertising case.
Hopefully, we’ll eventually be able to learn who comes to court with clean hands.