Antitrust Law Daily Wrap Up, ADVERTISING—D. Mass.: Celexa® maker defeats California unfair competition, false ad claims, (Aug 13, 2014)

By Greg Hammond, J.D.

Forest Pharmaceuticals, Inc. and Forest Laboratories, Inc., makers of the antidepressant drug Celexa®, have obtained summary judgment on consumer claims that they violated California’s Unfair Competition Law (UCL) and False Advertising Law (FAL). In awarding the pharmaceutical companies summary judgment, the federal district court in Boston determined that the consumer failed to show reliance on any suggestion by Forest that Celexa was effective for pediatric use, when physicians made the decision to prescribe the drug for his minor child (In re: Celexa and Lexapro Marketing and Sales Practices Litigation, August 8, 2014, Gorton, N.).

Background. Celexa is a selective serotonin reuptake inhibitor, an antidepressant prescription drug that received FDA approval for adults in 1998. In 2001, two studies reached conflicting results on whether Celexa was more effective than a placebo in treating depression in children. Consequently, the FDA denied Forest’s application to market Celexa for pediatric depression. Regardless, Robert “Woody” Wilcox was prescribed Celexa in 2003, when he was twelve years old. In 2010, Forest pleaded guilty to one misdemeanor count of distribution of a misbranded drug, Celexa. The company admitted that some representatives promoted the use of Celexa for children and adolescents, and publicized the results of the positive Celexa study, while not publicizing the results of the negative study. Woody’s father, Scott A. Wilcox, filed suit alleging violations of the UCL and FAL, and both parties filed motions for summary judgment.

Causation. In support of its motion for summary judgment, Forest argued that Wilcox lacked standing to assert a claim under the UCL or FAL. In order to establish standing, Wilcox was required to establish (1) an injury-in-fact (2) caused by Forest’s unlawful conduct.

Forest argued that there was no evidence that Wilcox or Woody’s treating physicians were exposed to false or misleading advertising by Forest, and Wilcox could not prove that he or Woody’s physician relied on any such representations. The court agreed, noting that: (1) Wilcox admitted he never was personally exposed to Celexa promotions; and (2) Woody’s physicians did not rely on their lack of awareness of the negative Celexa study, or any representation made by Forest that Celexa was effective for pediatric use when determining to prescribe the drug to Woody. Specifically, the court acknowledged the physicians’ testimony establishing that they place little importance on the fact a drug does not have an indication for the purpose they prescribe it. Consequently, the court concluded that, even if Wilcox could create a presumption of reliance, Forest could rebut that presumption with conclusive evidence that the physicians did not rely on any suppression of information. Forest was thus entitled to summary judgment on the UCL and FAL claims.

The case number is 09-2067-NMG.

Attorneys: Laura Ann Gianni (Gianni Petoyan) for Scott A. Wilcox. Andrew J. Ceresney (Debevoise & Plimpton, LLP) for Forest Laboratories, Inc., and Forest Pharmaceuticals, Inc.

Companies: Forest Laboratories, Inc.; Forest Pharmaceuticals, Inc.

Cases: Advertising MassachusettsNews