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AYERST INDERAL v

Executive Summary

GENERIC PROMOTION USING ACADEMIC testimonials is a continuing element of Ayerst's "anti-generic" campaign, the National Association of Pharmaceutical Manufacturers (NAPM) and Zenith Labs asserted in a filing in Southern New York Federal Court Nov. 20. "Ayerst has paid and continues to pay academics to go around the country, large cities and small towns, and generate media coverage for claims that only Inderal should be dispensed for patients needing propranolol." NAPM/Zenith lawyers Bass & Ullman (New York) said that "this campaign does not just involve the free expression of academic opinion, valid or not, but paid dissemination of false information in connection with an unlawful commercial campaign." NAPM and Zenith filed an unfair competition suit against Ayerst and Pharmacists Planning Services Inc. (PPSI) in June. Their recent filing is a memorandum in opposition to Ayerst's motion to dismiss the case. Since the NAPM/Zenith complaint was filed, Ayerst funded speakers have falsely contrasted brandname and generics at least six separate times, according to the filing. For example, the filing states, Dr. Jack Fincham, University of Georgia, was funded by Ayerst to "falsely compare brandname and generic drugs" on television, in New York City, on July 29, and in Huntsville, Alabama, in April. Dr. Barbara Wells, University of Tennessee, was also paid by Ayerst to "falsely compare brandname and generic drugs" in Harrisburg, Pennsylvania, in October, NAPM/Zenith asserted. NAPM and Zenith "believe that these incidents, which have been exposed even before any discovery, are but the tip of the iceberg. There is unfortunately no indication that the expiration of the two-year exclusivity period has put an end to these activities." In the filing, NAPM and Zenith respond to Ayerst's four arguments in support of its motion to dismiss the unfair competition claim. The first argument is that "the injury alleged in the complaint, lost sales of generic propranolol to post-MI patients in the early part of 1986, is not legally cognizable." Secondly, Ayerst maintains that it did not give false descriptions about Inderal. Ayerst also maintains that the representations did not refer to the "inherent quality or characteristic" of propranolol. And lastly, Ayerst asserts that it started the campaign because of a public debate, which involved other brandname manufacturers, and hence allows them first amendment protection.

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