Kemin, Henkel Settle Lawsuit, Counterclaims Over Lutein Representations
This article was originally published in The Tan Sheet
Executive Summary
Henkel must refrain from expressly representing its Xangold lutein ester is or contains "lutein" or "free lutein," and Kemin Foods is prohibited from describing its FloraGLO supplement as "pure lutein," according to a late July agreement resolving litigation between the two companies.
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Henkel must refrain from expressly representing its Xangold lutein ester is or contains "lutein" or "free lutein," and Kemin Foods is prohibited from describing its FloraGLO supplement as "pure lutein," according to a late July agreement resolving litigation between the two companies. Under the settlement, Henkel will adopt suggested labeling guidelines recommending its customers use a generic identifier, such as "lutein esters" or "marigold extract," other than "lutein" or "free lutein." The agreement allows Kemin to represent its current FloraGLO product as "purified" or "concentrated." Kemin filed suit in Des Moines, Iowa federal court in September 1998, asserting Henkel's Xangold lutein ester product attempted to unfairly compete with its patented FloraGLO product. Des Moines-based Kemin alleged Xangold was unproven because it contains lutein esters, not the pure lutein found in FloraGLO that has been proven beneficial in various antioxidant trials (1 (Also see "Henkel Xangold Lutein Competes Unfairly with Kemin FloraGLO, Firm Charges" - Pink Sheet, 14 Sep, 1998.)). Kemin charged Henkel with misleading advertising under the Lanham Act, intentional interference with contracts and prospective business advantage and unfair competition. In its countersuit, Henkel alleged Kemin's promotional material misrepresented that its FloraGLO lutein was pure. Under the settlement agreement, neither company admits fault or wrongdoing. Both firms agree not to expressly represent that each other's products are adulterated or infringe patents held by the other. Henkel agrees not to distribute, in hard copy or over the Internet, marketing pieces challenged by Kemin and will refrain from using the phrase "the most natural form of lutein" in its promotional material. The agreement allows both companies to cite or discuss for promotional purposes scientific studies or other information regarding the health benefits of lutein or lutein esters. The settlement is effective through Dec. 31, 2002. |