False Advertising in Florida and the Lanham Act

Trademarks provide valuable protection for a Florida business’ name and branding. The Lanham Act, the principal federal statute governing trademarks, allows a trademark holder to sue anyone who uses their mark in “false or misleading advertising” to sue and collect damages. Florida’s Deceptive & Unfair Trade Practices Act (FDUTPA) provides similar protections at the state level.

Tampa Judge Issues Injunction Against Would-Be Ozempic Competitor

A recent decision from a federal judge in Tampa, Novo Nordisk A/S v. Infinity Medical Institute, LLC, provides a good illustration of a successful false or misleading advertising claim under the Lanham Act and the FDUTPA.

Novo Nordisk is the manufacturer of several well-known diabetes and anti-obesity drugs, including Ozempic, Wegovy, and Rybelsus, all of which are brand names for the medication semaglutide. Infinity Medical Institute is a Florida limited liability company that advertises what Novo’s lawsuit described as “compounded drug products that purport to contain semaglutide and that are not approved by the FDA.”

Novo alleged that Infinity’s social media advertising contained multiple false and misleading statements designed to mislead consumers into believing that Infinity’s products were essentially an FDA-approved generic version of semaglutide. Infinity failed to appear in court or respond to Novo’s claims. This prompted Novo to seek default judgment.

Now, just because a defendant does not show up, that does not automatically entitle a plaintiff to default judgment. In the context of a Lanham Act or FDUTPA case, Novo still had to establish a “sufficient basis” for the court to conclude that the challenged advertising contained “false or misleading” statements. Here, the judge determined there was a sufficient basis.

Specifically, the judge found that four of Infinity’s public statements were “misleading,” although not “false.” Essentially, “Infinity misleadingly suggests the existence of generic, compounded semaglutide,” which in fact does not exist. Given these misleading statements, the court then had to determine whether there was any “proof of consumer deception.”

On this issue, Novo submitted a consumer survey that found a “majority or near-majority of women mistakenly believe that compounded, non-FDA-approved forms of semaglutide (such as the product advertised by Infinity) are as safe as FDA-approved versions.” The judge agreed with Novo that this injured the company’s reputation “by diverting customers” away from its product and towards those sold by Infinity.

As such, the judge found Novo had proven a Lanham Act violation and issued an injunction barring Infinity from advertising or “directly or indirectly suggesting” that its non-FDA-approved semaglutide products was a generic version of any of Novo’s drugs. Nor can Infinity mislead consumers into believing that its semaglutide products are FDA approved or proven to be “safe or effective for its intended use.”

Contact a Bradenton Consumer Fraud Lawyer

In addition to companies whose reputations may be harmed by false or misleading advertising, individual consumers can also sue for damages if they suffered a financial loss as the result of such activities. An experienced Bradenton consumer fraud lawyer can review your case and advise you of your options. Contact Suncoast Civil Law today at 941-366-1800 to schedule a confidential case evaluation.

Source:

scholar.google.com/scholar_case?case=8517858248256805479