Federal Trade Commission v. Shire Viropharma, Inc.

Manufacturer of a lucrative antibiotic spends years petitioning the FDA in an effort to keep generic versions off the market, reaping hundreds of millions of dollars. But all good things must come to an end, and in 2012 the FDA approves a generic. Five years later, the Federal Trade Commission sues the manufacturer for unfair competition, seeking an injunction and restitution. But the law only covers a company that “is violating or is about to violate” unfair competition laws. Can it apply to past violations? Third Circuit: The law says what it says, and the FTC can’t stretch it. The FTC might also wish to consider that petitioning the FDA is protected by the First Amendment.

Tags: 2019, FDA, First Amendment, FTC, Right to Petition, Third Circuit

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