Partner Paul Llewellyn Discusses False Advertising Allegations Against Scientific Studies in Forbes

Forbes reports on a recent federal appeals court ruling that debate over the legitimacy of studies published in scientific journals should be resolved by those in the scientific field, rather than those in the courtroom. Drugmaker ONY accused a rival of false advertising after it published a study that implied that its product reduced the likelihood of infant death by Respiratory Distress Syndrome significantly more than ONY’s product did. ONY claimed that the rival did not include all of the necessary data and so the findings of the study were misleading. However, the court ruled that such scientific findings are hypotheses rather than concrete facts, and often subject to reinterpretation as more research is conducted. As a result, such studies should be debated by the scientific community rather than the court.

Despite this ruling, there are still some situations in which studies published by drugmakers could be subject to allegations of false advertising. According to Kaye Scholer Partner Paul Llewellyn, Co-Head of the firm’s Trademark, Copyright & False Advertising Practice, “If a drugmaker misstates a conclusion or omits material data from promotional materials, a court could rule that false advertising took place.” He notes, “The court is saying that it’s not going to second guess and get behind the scientific process and look at other variables. I don’t think it provides a precise road map for what’s okay (for a pharmaceutical manufacturer) to do in the future, but I do think it does provide some useful background for future litigation.”