Sandoz Pharmaceuticals Corp. v. Richardson-Vicks

Sandoz Pharmaceuticals Corp. (Sandoz) (plaintiff), the manufacturer of over-the-counter cough syrups that may be used by adults and children, brought a Lanham Act claim for false advertising against Richardson-Vicks (Vicks) (defendant), the manufacturer of a new pediatric cough syrup. Sandoz alleged that Vicks’s claim that its cough syrup—that used demulcents—“starts working from the very first swallow” was false because the Food and Drug Administration (FDA) had not approved any demulcents as effective for cough relief. Sandoz also alleged that Vicks’s failure to list the demulcents as an active ingredient in its pediatric cough syrup was contrary to FDA guidelines and actionable as false advertising under the Lanham Act. Sandoz argued that the language in the Federal Trade Commission Act preventing false advertising is functionally indistinguishable from the language in the Lanham Act prohibiting false descriptions or misrepresentations, and therefore if a drug manufacturer’s claim regarding its over-the-counter drug is not adequately substantiated under FDA guidelines, it is a false claim for Lanham Act purposes whether or not a plaintiff can also show that the offending claims are literally false or misleading to consumers. The district court held for Vicks after finding that Sandoz had failed to prove that any of Vicks’s claims were false or deceptive. Sandoz appealed.