Tag Archives: fda

FDCA doesn’t preempt false advertising suit based on claims about protein source

Posted on October 15, 2018 by rtushnet

Durnford v. MusclePharm Corp., — F.3d —-, 2018 WL 4938190, No. 16-15374 (9th Cir. Oct. 12, 2018) Durnford brought the usual California consumer claims against MusclePharm for making false or misleading statements about the protein in one of its supplements. … Continue reading →

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Former supplier can sue supplement maker for falsely implying FDA approval & making claims based on old ingredients

Posted on October 12, 2018 by rtushnet

In re Elysium Health-Chromadex Litig., 2018 WL 4907590, No. 17 Civ. 7394 (CM) (S.D.N.Y. Sept. 27, 2018)    Elysium, which makes dietary supplements, sued Chromadex, a former supplier, for false advertising under the Lanham Act, trade libel, deceptive business practices … Continue reading →

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Court presumes failure to comply w/FDA labeling rules to be misleading

Posted on October 12, 2018 by rtushnet

Campbell v. Freshbev LLC, 322 F.Supp.3d 330 (E.D.N.Y. 2018) Campbell bought several bottles of Freshbev juices at Whole Foods, allegedly relying on misrepresentations (1) that the juices were unpasteurized; (2) that the juices were cold-pressed; (3) that the juices were … Continue reading →

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Lanham Act covers ads that drug is FDA-approved/has ANDA

Posted on August 7, 2018 by rtushnet

Arbor Pharmaceuticals, LLC v. ANI Pharmaceuticals, Inc., 2018 WL 3677923, No. 17-4910 (D. Minn. Aug. 2, 2018) Arbor sells prescription erythromycin ethylsuccinate for oral suspension, allegedly the only FDA-approved products of their kind on the market. ANI announced the launch … Continue reading →

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make your own sexual reference: 9th Circuit partially reinstates male enhancement lawsuit

Posted on April 9, 2018 by rtushnet

Sandoval v. PharmaCare US, Inc., No. 16-56301, No. 16-56710, — Fed.Appx. —-, 2018 WL 1633011 (9th Cir. Apr. 5, 2018) Sandoval brought a putative class action claim based on PharmaCare’s statements about its “male enhancement” product IntenseX. The court of … Continue reading →

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Supplement maker can’t enjoin database changes, but avoids anti-SLAPP dismissal

Posted on December 26, 2017 by rtushnet

Exeltis USA Inc. v. First Databank, Inc., 2017 WL 6539909, No. 17-cv-04810 (N.D. Cal. Dec. 21, 2017) This is an interesting case about the FDA/Lanham Act interaction. Exeltis sells prenatal vitamins that contain 1 mg of folic acid.  They aren’t … Continue reading →

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Another court declines to apply GNC where plaintiff alleges only negative studies

Posted on November 20, 2017 by rtushnet

Yeldo v. MusclePharm Corp., 2017 WL 5499588, Case No. 17-11011 (E.D. Mich. Nov. 16, 2017) Yeldo brought a putative class action alleging that MusclePharm used misleading marketing practices to promote its glutamine dietary supplement, whose label and online ads indicate … Continue reading →

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When the specifics are misleading: medical test stats draw false advertising claim

Posted on October 19, 2017 by rtushnet

Quidel Corp. v. Siemens Med. Solutions USA, Inc., 2017 WL 4654644, No. 16-cv-3059 (S.D. Cal. Oct. 16, 2017) Quidel is a “diagnostic healthcare manufacturer” that “developed, promotes and sells the Thyretain TSI Reporter BioAssay,” which is “intended for the qualitative … Continue reading →

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Reading list: consequences of 1A protections for off-label promotion

Posted on September 18, 2017 by rtushnet

Patricia J. Zettler, The Indirect Consequences of Expanded Off-Label Promotion, Ohio State Law Journal, Forthcoming  The U.S. Food and Drug Administration’s (FDA) policies have been a battleground for litigation about First Amendment protections for commercial speech. In the last five … Continue reading →

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“unapproved drug” claims fail post-Pom, but not challenge to “natural” claim

Posted on June 12, 2017 by rtushnet

Hi-Tech Pharmaceuticals, Inc. v. Hodges Consulting, Inc., 2016 WL 8856671, No. 16-cv-00906 (N.D. Ga. Dec. 13, 2016) Hi-Tech and Hodges compete in the dietary supplement market for body builders.  Hi-Tech sued for patent infringement, as well as for false advertising. … Continue reading →

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