SW Legal studies in Business

Different Marketing for Different Strength Drugs Not Deceptive Practice
Description Appeals court affirmed the dismissal of a deceptive practice suit against drug makers by a consumer who contended that selling a weaker version and a stronger version of the same drug in different markets was deceptive. The FDA approved the two marketing procedures since the different versions were intended for different medical problems.
Topic Consumer Protection
Key Words False Information; Drugs
C A S E   S U M M A R Y
Facts Bober brought suit against the firms that make and market over-the-counter (OTC) and prescription strength forms of a stomach acid reliever. The OTC drug is one-half the strength of the prescription drug. Bober contends that the statement by the drug maker that consumers should not substitute two OTC pills for one prescription pill, unless a physician approves the substitution, is false information. Consumers are injured because the prescription pills are more expensive than the OTC pills. The district court dismissed the suit. Bober appealed.
Decision Affirmed. The statements about the drugs were not deceptive. Under Illinois law, to show consumer deception, the plaintiff must show that the defendant engaged in a deceptive practice, that the defendant intended that the plaintiff rely on the practice, and the practice affected commerce. Here, the drugs were approved by the Food and Drug Administration for different problems. They were individually approved and were sold in different ways under FDA supervision. The drug maker did not state that the drugs were not therapeutically equivalent, only that they were sold for different purposes and that one should be taken only under a physician's direction.
Citation Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir., 2001)

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