Court Tosses Amarin Fair Trade Complaint Against Omega-3 Imports
Majority opinion by Federal Circuit upheld International Trade Commission's decision and denied as moot Amarin's petition for order to compel a judicial or government officer or agency to perform a duty. Dissenting opinion not only agrees ITC acted correctly denying the firm's complaint, but also says the commission's decision wasn't appealable. Ropes & Gray attorneys suggest ruling provides guidance for additional fair trade complaints about FDA-regulated products.
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In an amicus opposing Amarin's petition in federal court for an order that the US ITC investigate its fair trade complaint targeting certain omega-3 oil ingredients, DoJ says the drug firm is attempting private enforcement of the FDC Act. The act "commits enforcement exclusively to the federal government to ensure that complex enforcement decisions are made with the benefit of FDA's scientific and regulatory expertise," DoJ argues.
Amarin's petition to the Federal Circuit Court to direct ITC to investigate its complaint that some omega-3 ingredients are unapproved drugs leans on Supreme Court decisions that compliance with FDA regulations in cosmetic and food labeling does not preclude litigation alleging the information rendered a product an unapproved drug or represented false advertising.
CRN recommends the International Trade Commission not investigate Amarin's complaint against dietary supplements containing primarily ethyl ester or re-esterified EPA. The firm markets Vascepa, a synthetically produced ethyl ester drug approved to reduce triglyceride levels in adults with severe hypertriglyceridemia.