Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Pa.: Claims based on allegedly deceptive marketing scheme of diabetes drug Avandia dismissed, (Jul 12, 2013)

By Jody Coultas, J.D.

Prescription drug users could not state consumer protection law claims against diabetes drug Avandia manufacturer GlaxoSmithKline LLC for allegedly falsely advertising Avandia, according to the federal district court in Philadelphia (In Re: Avandia Marketing, Sales Practices and Products Liability Litigation, July 10, 2013, Rufe, C.).

The multidistrict litigation involved four former users of Avandia alleged that GSK concealed the risks of using Avandia, and engaged in a fraudulent and deceptive marketing program in violation of the state consumer laws. The users alleged that the marketing program resulted in consumers using Avandia instead of alternative treatments and paying higher purchase prices and co-payments. The users did not allege any physical injuries suffered as a result of taking Avandia.

Because the New Jersey Consumer Fraud Act claim should have been brought under the New Jersey Products Liability Law (PLA), the court dismissed the claim. The PLA is the exclusive basis for any product liability action. Claims such as the one at issue are expressly preempted by the PLA. Allowing recovery under a statute other than the PLA would create a cause of action inconsistent with the PLA’s comprehensive legislative scheme, according to the court.

The learned intermediary doctrine barred claims filed under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), according to the court. Even if the doctrine did not bar the claims, the court would have dismissed the claims for failure to allege that the consumer paid more in co-pays for Avandia than he would have paid for other drugs. The learned intermediary doctrine states that a drug manufacturer owes a duty of disclosure to prescribing physicians, but it is then the duty of the prescribing physician to communicate any risks or other information about the drug to the patient. A patient in Pennsylvania cannot justifiably rely on representations made by a prescription drug manufacturer. The user was unable to allege any facts that would overcome the learned intermediary doctrine. Users could not obtain Avandia without a physician's prescription, and there was no evidence of reliance beyond generalized allegations that a physician viewed Avandia marketing materials.

The New York General Business Law claims were dismissed for failure to allege any affirmative representations about Avandia, according to the court. The New York user alleged that in 2004 or 2005 she viewed advertisements about Avandia that did not warn of the alleged dangers of Avandia use. The court could not infer a causal connection between the alleged misrepresentations and the user’s loss of money in purchasing Avandia. The user also failed to allege that she paid more for Avandia than she would have paid for an alternative treatment.

Finally, the court dismissed the California consumer protection law claims for failure to allege what advertising materials or information prescribing physician relied upon. The user also did not allege any harm. There was no evidence that the user justifiable relied on any misdeeds by GSK.

The case is No. 07-MD-01871.

Attorneys: Brian J. McCormick, Jr. (Sheller PC) for Richard V. D'Apuzzo. Sean P. Fahey (Pepper Hamilton LLP) for GlaxoSmithKline LLC.

Companies: GlaxoSmithKline LLC

Cases: Advertising StateUnfairTradePractices PennsylvaniaNews