Sarpy County-based Sergeant's Pet Care Products has sued Bayer Healthcare for false advertising, saying the rival's claims of flea and tick lethality are unsupported and misleading.
Sergeant's, which employs about 160 people in the Omaha area, filed the suit last week in U.S. District Court in Omaha against the New York-based unit of Germany's Bayer AG.
The suit says Bayer exaggerates the effectiveness of the Seresto brand of flea and tick collars for dogs and cats. Sergeant's is seeking a court order ending the claims, as well as the profits Bayer derived from the advertising and compensation for unspecified damages.
The suit says Bayer advertises the Seresto products as killing fleas and ticks for eight months; as preventing tick infestation 48 hours after application; as killing fleas on dogs in 24 hours and preventing the laying of flea eggs; and as 97.7 percent effective by a variety of other measurements.
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“Upon information and belief, defendant does not have studies or, alternatively, does not have reliable studies, to support the foregoing claims,” reads Sergeant's lawsuit. “Upon information and belief, defendant does not have any data that shows that Seresto exceeds 90 percent efficacy within 48 hours after fitting the collar to a dog at the same time that the dog is infested with fleas and/or ticks.”
The flea flap is part of a large business. Both companies are big dogs in the competitive industry of over-the-counter flea and tick prevention. Bayer ranks third in market share, and Sergeant's fourth, according to California-based IBISWorld, a U.S. publisher of industry and markets information. The whole business is worth about a half-billion dollars a year, according to IBIS.
It is also an important industry in the Omaha metro. Sergeant's operates a factory here, along with the headquarters, which also administers a plant in Kansas City and a distribution center in Memphis, Tenn. The company, founded in 1868 and once part of Omaha-based ConAgra's corporate empire, last year moved into new office and manufacturing quarters at 10077 S. 134th St., creating about 70 new jobs.
Attempts to reach executives with Bayer were unsuccessul. A Sergeant's spokeswoman declined to comment on the suit.
Bayer Healthcare introduced the Seresto collars in the United States this year; they were already sold in Europe. The company describes the collars as offering eight-month protection via a sustained-release system that doses out small quantities of medication. The performance of Seresto, Bayer said in a May press release, rivals that of monthly topical preparations, which some pet owners purchase via prescription.
“Many pet owners live busy lives and tend to forget monthly treatments or only apply treatments during months when fleas and ticks are most prevalent,” Bayer wrote in a May press release about Seresto's introduction to the United States.
Rebecca Tushnet, an advertising law professor at Georgetown University in Washington, said false advertising lawsuits involving industry rivals are not uncommon.
“It is natural for advertisers to push the boundaries,” she said, speaking of the trade in general.
Tushnet said claims that can be scientifically verified, such those involving medicine, are different from puffery or hyperbole, such as those involving body sprays and their “guarantees” to attract partners. The maker of a medicine with a certain effectiveness, she said, deserves to have that accomplishment protected from poachers who simply claim the same success.
“Consumers have the right to a fair market in product communications,” Tushnet said.