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Partner Paul Llewellyn Weighs in on False Advertising and Peer-Reviewed Articles in Phar…

July 10, 2013

Partner Paul Llewellyn Weighs in on False Advertising and Peer-Reviewed Articles in Pharmaceutical Executive

As seen in Pharmaceutical Executive’s blog post “Lanham Act: Peer-Review on Trial”

Pharmaceutical Executive reports on the recent federal appeals court decision in Ony v. Cornerstone Therapeutics, Chiesi Farmaceutici et. al., which ruled that the debate over the content of peer-reviewed journal articles is something that should be dealt with by the scientific world rather than the legal world. Plaintiff Ony argued that the defendants were guilty of false advertising in promoting a journal article that Ony believed did not contain all of the necessary data to prove that the defendants’ product was more effective. However, the court ruled that the legal system is not equipped to issue final judgment on the scientific merit of such articles.

According to Kaye Scholer Partner Paul Llewellyn, Co-Head of the firm’s Trademark, Copyright and False Advertising Practice, “the case is an important one, destined to be cited in a lot of new cases going forward.” However, he also reminds pharmaceutical companies that they should not take this to mean that providing data will always provide protection from false advertising allegations, noting “This decision should not be read as a free pass to say whatever the scientists will say in a journal article.”

While the limits to the decision are still somewhat vague, Llewellyn says that it “does suggest that at least in some circumstances, courts aren’t going to start refereeing the scientific process.”

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