Lanham Act False Advertising Litigation: A Potent Weapon in Prescription and OTC Drug Promotion

Litigation partners Harold P. Weinberger and Jonathan M. Wagner, and associate Tobias B. Jacoby's article "Lanham Act False Advertising Litigation: A Potent Weapon in Prescription and OTC Drug Promotion" appears in the February 2009 issue of Bloomberg Law Reports: Health Law.

More than ever before, pharmaceutical companies are suing competitors, alleging that a rival’s advertising for its prescription or over-the-counter drugs is false or misleading. These suits are an effective means to compete for market share, and success or failure in the courtroom often has real and immediate business consequences. To resolve these disputes, the courts have developed a rich body of law that attempts to balance a private plaintiff’s right to sue for false advertising with the extensive regulatory scheme governing the sale of drugs in the United States. This article describes the contours of federal false advertising suits, and addresses several issues unique to false advertising litigation involving prescription and OTC drugs.