Rhone-Poulenc Rorer Pharmaceuticals, Inc. v. Marion Merrell Dow, Inc.

Marion Merrell Dow, Inc. (Dow) (defendant) manufactured the first diltiazem drug, Cardizem CD, that was approved to treat hypertension and angina. Rhone-Poulenc Rorer Pharmaceuticals, Inc. (Rhone) (plaintiff) manufactured the diltiazem drug Dilacor XR, which was approved as a new drug to treat hypertension but not angina. The Food and Drug Administration (FDA) classified Dilacor XR as a BC drug, meaning that it was not necessarily bioequivalent and only a prescribing physician has authority to substitute it for another drug. Advertising wars ensued between Dow and Rhone. Rhone sought to convince prescribing physicians that its drug was the same as but cheaper than Dow’s drug: Dow initially told its sales representatives that Rhone’s drug was not as effective, which was not true, and then used medical studies to refute Rhone’s claims that the two drugs were bioequivalent. Rhone sued Dow for false advertising, and Dow counterclaimed against Rhone for false advertising. Rhone alleged that Dow’s initial claims to its sales reps were false and that Dow’s later claims were based on a flawed study. Dow alleged Rhone falsely told medical professionals that its drug could freely be substituted for Dow’s drug when in fact Rhone’s drug was not approved to treat angina, the two drugs did not have similar bioavailability, and the two drugs were differently absorbed when taken with meals. The district court found that Dow’s initial statements, which Dow subsequently quit making, were false but that the study that Dow relied on in its advertising was not false and declined to award Rhone any money damages. As to Dow’s counterclaim, the district court found that because Rhone’s advertisements conveyed a false message, Dow need not show consumer confusion, and it ordered Rhone to correct it regarding the fact that its drug had not been approved to treat angina.