Pharmaceutical Cos. Accuse Competitor of Falsely Advertising Cream as FDA-Approved Generic

Sebela Pharmaceuticals Inc. and Perrigo New York, Inc. have filed a complaint against TruPharma, LLC for supposedly deceiving members of the public and the pharmaceutical industry that a topical cream it sells is generically equivalent to Sebela’s branded cream and Perrigo’s authorized version. Thursday’s District of Delaware complaint centers on Sebela’s trademarked Pramosone product, a corticosteroid available only by prescription. 

According to the filing, Sebela markets, distributes, and sells pharmaceuticals in the gastroenterology and dermatology fields; the aforementioned cortisone cream and a similar one, both sold by Sebela, have been on the market for over 30 years. Sebela contends that it has dedicated significant resources to building its reputation and creating goodwill in connection with Pramosone.

This is also true for Perrigo, which with Sebela’s authorization and like Sebela, markets and sells two hydrocortisone creams. The complaint contends that defendant TruPharma advertises and markets its unauthorized “HCA/Pram” product as a generic substitute for Pramosone.

The complaint explains that manufacturers make use of drug databases to advertise and promote their products. Reportedly, wholesalers, pharmacists, insurers, and other healthcare professionals use the databases to “evaluate medications that are currently on the market and determine whether ‘generic’ versions of brand-name products are available.”

The defendant’s drug database representations, the plaintiffs aver, makes its hydrocortisone cream appear as if it were linked to the plaintiffs’ creams. In turn, this causes pharmaceutical industry players to believe that TruPharma’s product is an FDA-approved generic equivalent that is “automatically substitutable” for the branded product, when in fact it has neither received FDA approval as a generic nor therapeutic equivalent of Pramosone.

The seven-count complaint brings several causes of action under the Lanham Act, including false advertising and unfair competition, as well as state and common law claims. The complaint seeks injunctive relief, an accounting of the profits derived from the sale of the defendant’s cream, damages, and an order requiring corrective advertising, among other things.

The plaintiffs are represented by Buchanan Ingersoll & Rooney PC.