American Journal of Law & Medicine

Pharmaceutical marketing practices: pharmaceutical companies facing competition from generic drug manufacturers may face increased scrutiny for anticompetitive marketing practices - In re, Warfarin Sodium Antitrust Litig.

The United States Court of Appeals for the Third Circuit rejected challenges to a $44.5 million settlement against DuPont Pharmaceuticals Co. ("DuPont"). (2) The settlement ended a class-action consumer antitrust suit over the marketing of DuPont's widely used blood thinner, Coumadin. (3) Specifically, the plaintiffs alleged that "DuPont's anticompetitive behavior and dissemination of false and misleading information about a lower-priced, readily available generic competitor caused them to purchase the higher priced Coumadin instead of the generic product." (4) The appeal challenged the appropriateness of class certification, which included fixed co-pay consumers, out-of-pocket consumers, and third party payors ("TPPs"). (5)

In 1997, Barr Laboratories, Inc. ("Barr") began manufacturing and marketing an FDA-approved generic form of warfarin sodium. (6) Plaintiffs alleged that before and after Barr introduced its generic warfarin sodium, DuPont "published false and misleading statements concerning the bioequivalence, therapeutic safety, and efficacy of generic warfarin sodium. …

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