Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—S.D. Ill.: Claims that consumers are limited to only large portions of eye drops survive attempts to dismiss, (Mar 20, 2014)

By Melissa Skinner, J.D.

Consumers that claimed certain eye drops manufactured and sold were only available in portions that were too large for the necessary treatment of short-term conditions were not dismissed after arguments by the manufacturer and distributor alleged the claims were subject to preemption by federal law. In particular, the consumers asserted that even though the drops were produced in both small and large bottles, only the larger bottles were available for purchase by consumers. In addition to finding that the facts of the case had not developed enough for the court to determine whether the claims were preempted, the court also rejected the assertions that the claims should be dismissed due to the application of statutory exclusion and because the consumers did not properly allege that eye drop manufacture and sale constituted an unfair practice (Fields v Alcon Laboratories, Inc., March 18, 2014, Herndon, D).

Background. Carmen J. Fields filed the case against Alcon Laboratories, Inc., and Alcon Research Ltd., (collectively Alcon) on behalf of herself and a class of individuals who bought eye drops manufactured and sold by Alcon. Alcon manufactures two sizes of bottles containing eye drops meant to treat short-term conditions such as bacterial conjunctivitis and post-surgical inflammation. While the smaller sample size is made available only to physicians, consumers may only purchase the larger size bottle. According to Fields, because the large bottle is the only size available for purchase, “consumers are compelled to purchase larger quantities than could be used for a single course of treatment pursuant to the indicated dosages or physicians’ typical prescriptions.” Specifically, Fields allegations included that Alcon violated the Illinois Consumer Fraud and Deceptive Business Practice Act (ICFA).

Statutory exclusion. In response to Alcon’s argument that Fields’ claims should be dismissed pursuant to a statutory exclusion in the ICFA, the court found that this argument could not be applied in a motion to dismiss because the affirmative defense was not evident on the face of Fields’ complaint. In particular, Alcon argued that ICFA claims were barred against Alcon in regard to the eye drops because the FDA approved the drops. Yet the court found because Alcon did not show that the FDA specifically approved Alcon’s withholding of the smaller sized portion from consumers, the exclusion of claims for previously approved products under the ICFA could not be applied to bar claims pursuant to a motion to dismiss.

Preemption. Alcon asserted that Fields’ claims are preempted because in order to escape liability under these alleged state law claims, Alcon would have to change the drops to an extent that is not authorized by the FDA regulations. The court refused to determine whether it was impossible in this case for Alcon to comply with both state and federal law. Instead, the court found that the facts of the case were not developed enough to make that determination and that Field’s claims should survive the attempt to dismiss because she sufficiently put Alcon on notice of a plausible claim.

Unfair practice. Alcon also attempted to attack Field’s complaint on the grounds that Fields failed to allege an unfair or deceptive practice, which is a necessary element of a claim pursuant to the ICFA. Under the ICFA, a business practice is considered unfair if it violates public policy. The court held that Fields’ complaint alleged a violation of public policy insofar as it claimed that Alcon sold the eye drops only in a form that was known to exceed the necessary dosage amount and that this was contrary to public policy as stated in the Federal Trade Commission’s Unfairness Policy Statement. Therefore the cause of action under the ICFA was upheld.

The case number is 3:13-cv-00197-DRH-DGW.

Attorneys: John G. Simon (Simon Law Firm PC) for Carmen J. Fields. Francis A. Citera (Greenberg Traurig) for Alcon Laboratories, Inc.

Companies: Alcon Laboratories, Inc.

Cases: StateUnfairTradePractices IllinoisNews