Athena Appeal Decision Could Open ‘Floodgate’ For False Claims Litigation
This article was originally published in The Tan Sheet
Executive Summary
Lower court decisions that Athena Cosmetics’ RevitaLash products is an unapproved drug competing unfairly against Allergan's Latisse drug could have broader implications if the Supreme Court denies the firm's request for review. Already beleaguered by class actions following FDA warnings, firms could face more opportunistic lawsuits if federal courts are left to determine a product's intended use and regulatory status.
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Federal food and drug law does not impliedly preempt Allergan's suit against Athena Cosmetics alleging that the defendant's RevitaLash products compete unfairly against the drug firm's Latisse treatment in California, according to a brief filed by Solicitor General Donald Verrilli with the Supreme Court. Athena has argued that the absence of FDA action against its eyelash enhancers signals that their cosmetic positioning is lawful, but Verrilli disagrees, maintaining that such litigation can supplement rather than conflict with FDA regulation.