Hydrocortisone & Pramoxine

Hydrocortisone & Pramoxine

On May 05, 2021, Delaware court granted motion for judgment on the pleadings & dismissed the complaint.

 

Sebela Pharmaceuticals sued TruPharma for false advertising and unjust enrichment. According to Sebela, TruPharma falsely advertised its cream as “a ‘generic’ equivalent of Sebela’s Pramosone® (Hydrocortisone & Pramoxine) cream. In the drug database, the two creams are “linked” and listed in the same table. Sebela claims that the creams are linked based on “representations of TruPharma to the” database.

 

Court, however, said that the database does not appear to contain a false statement. It does not say that two drugs are substitutes just because they are linked. Indeed, it says the opposite: that the creams are “not rated” by the FDA as equivalent. Court said, it can not assume that the database’s sophisticated audience will misuse it just because Sebela says so. Sebela must “explain how the [database is] supposed to have misled consumers in light of the whole context.” Therefore, the false advertising counts are conclusory.

 

With respect to unjust enrichment, Court said that the claim is hard to follow and does not appear to relate to TruPharma’s advertising. Instead, Sebela seems to argue that it took certain regulatory steps to get its cream on the market. Without those steps, Sebela suggests, TruPharma would be unable to sell its own cream. This does not plausibly state an unjust enrichment claim. At best, it shows TruPharma was enriched. But Sebela has not explained why the enrichment was unjust.

 

Thus, Court granted TruPharma’s motion for judgment on the pleadings.

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