Court Orders Sales Injunction of Botox and Juvederm Competitors
Makenzie on 13 Mar 2012 at 9:30am
Updated March 15, 2012
Botox competitor Xeomin and the dermal filler Radiesse will be largely unavailable for cosmetic purposes for the next 10 months. Their makers, Merz Pharmaceuticals and Merz Aesthtics (Merz), have been hit with an injunction by Allergan, the maker of Botox.
To make a very long story short, what was found is that while preparing to launch Xeomin as a thereapeutic product in 2010 (it was approved for cosmetic use in 2011), Merz hired a handful of Allergan employees. Before giving Allergan their notice, many of those employees sent to their personal emails A LOT of confidential Allergan documents.
According to the Court’s Findings of Fact and Conclusions of Law, the documents contained Allergan’s customer information for both Botox and Juvederm (a Radiesse competitor), as well as confidential training information.
Through the discovery and investigation process, Allergan ultimately learned that, contrary to the statements made at the [Temporary Restraining Order] hearing, Merz Pharma and Merz Aesthetics had in fact been in possession of potentially confidential Allergan information for months before that hearing.
The court findings also state that “Monetary damages would be insufficient to address Allergan’s injuries resulting from Defendants’ misappropriation,” and that “an injunction in this case would serve the public interest.”
What does this mean for patients and doctors?
According to a Merz spokesperson, for the next 10 months (as of March 9, 2012), Merz has been prohibited from “providing or selling...or soliciting purchases of” Xeomin AND Radiesse for cosmetic purposes.
They add that only exception is that Merz may solicit and sell Radiesse (and their other dermal filler, Belotero) to customers who have used it between July 1, 2009 and June 30, 2010 as long as "a sworn declaration will be provided to the judge that confirms that these customers did in fact purchase dermal filler products" in this period.
A customer may also request to purchase Radiesse, but must "certify that such requests were made voluntarily and without solicitation."
Xeomin was just beginning to gain some consumer recognition as a rival to Botox. It was supposed to be commercially introduced as a cosmetic product at the annual meeting of the American Academy of Dermatology on March 12.
The injunction may be especially painful for Radiesse, which has been FDA approved and widely-used since 2006.
According to Bloomberg.com, "in his closing argument, [Merz attourney] Rick McKnight said the proposed 12-month ban on Xeomin sales 'puts the companies out of business.'"