omission from “comprehensive” database wasn’t actionable misrepresentation

Alexso, Inc. v. First Databank, Inc., 2015 WL 5554005, No.
CV 15-01893 (C.D. Cal. Sept. 21, 2015)
 
Alexso makes kits that pharmacies use to compound
prescription drugs.  FDB publishes databases
that provide information about drug products to the healthcare industry. Alexso
requested inclusion of eight of its kits in FDB’s database; FDB requested
additional information, including whether the kits were FDA approved.  Alexso responded that the kits didn’t require
additional FDA approval because they were already FDA approved for marketing in
the United States as a “Bulk Ingredient for Human Prescription Compounding.” FDB
refused to list the kits unless and until Alexso received notice from the FDA
that the kits could be marketed without approval. FDB did at some point list
kits manufactured by Alexso’s competitors.
 
Alexso argued that the exclusion of the kits from FDB’s
database violated the Lanham Act and California’s UCL, intentionally and
negligently interfered with Plaintiff’s prospective economic advantage, and
committed a prima facie tort. Because FDB provides information for hospitals,
physicians, pharmacies, and other health care providers, Alexso alleged that
its exclusion put at a “fatal competitive disadvantage,” and that consumers
interpret the exclusion of the kits as a representation that the products weren’t
approved for sale by the FDA.
 
The court held that the complaint failed to allege that FDB
made any representation about Alexo’s products. The database just doesn’t mention
Alexso’s compounding kits. Although FDB advertising touts the databases as
“more comprehensive” and providing “comprehensive drug knowledge,” the
complaint didn’t allege that FDB ever purported to offer an exhaustive listing
of FDA-approved products or suggested that products not listed in the database weren’t
FDA-approved. “Absent any such statements, and given the myriad reasons why a
for-profit informational database or catalogue might list certain products and
not others, FDB’s exclusion of Alexso products cannot plausibly be read as an
affirmative representation of any kind regarding those products, let alone a
representation that would lead database subscribers to wrongly believe that
Alexso’s kits are not approved by the FDA.” Alexso alleged that California’s
Medicaid program relies exclusively on FDB’s database, and wouldn’t reimburse
providers for products not listed in the database. That might be a problem, but
the Lanham Act wasn’t the appropriate vehicle for relief.  With the Lanham Act claim gone, the court
declined to consider the state-law claims (or the anti-SLAPP defense thereto,
which sidesteps an interesting question about whether the speech challenged is
commercial).

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