Dispute with the coughing consumer: Bronchostop

At the beginning of the year, almost everything is about tissues, vitamin supplements, thermometers and snivelling colleagues. In the middle of the flu 2016 epidemic, Boehringer, the producer of the well-known cough syrup Bisolvon, sued its competitor Omega Pharma, a newcomer to the cough market. It was alleged that Omega Pharma had produced misleading advertising for its new cough product BRONCHOSTOP®. As generally accepted, there are two sorts of cough: tickly cough and cough with mucus. According to Omega Pharma, Bronchostop - a product based on thyme and marshmallow root – alleviates both types of cough. It used a catchy one-liner, “Bronchostop, for every type of cough!”

According to Boehringer, the advert misled the consumer: Omega Pharma would suggest that Bronchostop also works for other causes of coughing, such as COPD or other serious diseases. Furthermore, the product would not contain any proven effective ingredients, would not involve a “new treatment”, nor would it consist of a “unique combination of ingredients”. A host of complaints from a company that felt its market share being nibbled away. Boehringer commenced court proceedings; Omega Pharma raised a principal defence.

The district court dismissed Boehringer’s claims outright. The consumer understands that Bronchostop is intended for coughing associated with colds. After all, the product is available without prescription at the chemist or supermarket. The court found that the product could not be said to contain “proven effective ingredients”. The court found that the ingredients used in this product, as well as for cough products in general (!), had not been proven to work against coughing. A small and strange reasoning, in an otherwise clear and straightforward decision.

Omega Pharma can continue with its advertising campaign with peace of mind. Anyone have a tissue? Boehringer has since filed for appeal.

Omega Pharma is represented by Ebba Hoogenraad and Sarah Arayess.