Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—E.D. Mo.: Consumer’s claims against Restasis maker fail, (Jan 30, 2014)

By Linda O’Brien, J.D., LL.M.

In an action against health care products company Allergan USA, Inc., a consumer of eye medication failed to state claims of violations of the Missouri Merchandising Practices Act (MMPA), the federal district court in St. Louis has held. Accordingly, Allergan’s motion to dismiss was granted (Thompson v. Allergan USA, Inc., January 28, 2014, Fleissig, A.).

Allergan manufactures and sells Restasis, a prescription ophthalmic medication for the treatment of chronic dry eye. The medication is supplied in preservative-free vials that also serve as dispensers. Each vial contains approximately 14 drops of medicine while the recommended dosage of Restasis is one drop twice a day. The medication is packaged with an insert that states each individual single-use vial is to be used immediately after opening for administration to one or both eyes, and the remaining contents should be discarded after administration.

Francine Thompson, a consumer who purchased Restasis, filed suit against Allergan alleging unjust enrichment, deceptive and unfair practices, and violations of the MMPA. Thompson claimed that Allergan overfilled Restasis dispensers so consumers were forced to purchase more medication than they could use. The price of Restasis vials was based on the amount of medication in each vial and, if smaller quantities of medication were included, the prescription would be less expensive. The defendant increased profits by overfilling the vials constituted economic harm to the plaintiff, it was alleged. Allergen moved to dismiss the complaint.

The court found that Thompson failed to allege an ascertainable loss under the MMPA. To state a claim under the MMPA, the plaintiff must show that (1) she purchased the product in question; (2) it was purchased for personal, family, or household use; (3) she suffered an ascertainable loss; and (4) the ascertainable loss was the result of an unfair practice. Thompson bargained for and received what was always purported to be a single dosage of Restasis. Because she received the “benefit of the bargain,” she failed to allege that she did not receive the benefit of the medication for which she bargained for. Moreover, the plaintiff presented no evidence that less medication would have resulted in a less expensive product for the consumer and made no allegations that Allergan misrepresented what it was selling.

Preemption. Alternatively, Thompson’s claims were preempted, according to the court. Regulations of the Food and Drug Administration (FDA) provide that once a drug is approved, the manufacturer is prohibited from making major changes to the quality or quantity of the drug without FDA approval. A reduction in the amount of medicine in each Restasis vial would be a major change that would require prior FDA approval. Since Allergan was unable, under federal law, to independently reduce the volume of each vial of Restasis to comply with the state law duties alleged by Thompson, her state claims were preempted.

The case is No. 4:13CV00030 AGF.

Attorneys: John G. Simon (The Simon Law Firm, P.C.) for Francine Thompson. Douglas B. Maddock (Shook and Hardy, LLP) for Allergan USA, Inc.

Companies: Allergan USA, Inc.

Cases: StateUnfairTradePractices MissouriNews