On Wednesday, the Third Circuit issued a non-precedential opinion in the case of Sebela Pharmaceuticals, Inc. v. TruPharma, LLC affirming the district court’s decision dismissing the case with prejudice.
According to the opinion, Sebela is a drug manufacturer that sells hemorrhoid cream under the names Pramosone and Analpram, creams not approved by the Food and Drug Administration (FDA) containing hydrocortisone acetate and pramoxine hydrochloride. Further, the opinion states that TruPharma is a competing pharmaceutical company that also sells a hemorrhoid cream containing hydrocortisone acetate and pramoxine hydrochloride.
The court states that both companies, like many other drug manufacturers, submit information about their products to drug databases which assign products a multi-character code that pharmacies, pharmacy benefit managers, and prescription fillers are able to see to make order and buy decisions. The opinion purports that Sabela’s and TruPharma’s creams contain the same active ingredients and the same strength the independent drug databases list their products together.
Sabela subsequently sued TruPharma in the District Court of Delaware under the Lanham Act for alleged direct and contributory false advertising and unfair competition the Delaware Deceptive Trade Practices Act, common law unfair competition and tortious interference with contract or prospective contractual relations. The Court states that Sebela argued that TruPharma represented that its product is an equivalent to Sabela’s cream or a generic version because it communicated its products specifications to the independent drug databases.
After Sabela filed the complaint TruPharma filed a motion to dismiss which the district court granted stating that Sabela failed to show that a single statement was false or show that any statements were misleading because the companies’ creams were pharmaceutically equivalent. Sabela timely filed an appeal leading to the present opinion.
In the opinion, the court agreed with “the District Court’s pithy and well-crafted opinion.” Additionally, the court noted that the mere listing together of these products in the databases is not an actionable claim against TruPharma which was the core of Sabela’s complaint. Therefore, the Third Circuit affirmed the district court’s decision dismissing Sabela’s complaint with prejudice.