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Athena Appeal Decision Could Open ‘Floodgate’ For False Claims Litigation

This article was originally published in The Tan Sheet

Executive Summary

Lower court decisions that Athena Cosmetics’ RevitaLash products is an unapproved drug competing unfairly against Allergan's Latisse drug could have broader implications if the Supreme Court denies the firm's request for review. Already beleaguered by class actions following FDA warnings, firms could face more opportunistic lawsuits if federal courts are left to determine a product's intended use and regulatory status.

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Supreme Court Review Of Athena Cosmetics Case, Federal Preemption Argument Unlikely

Federal food and drug law does not impliedly preempt Allergan's suit against Athena Cosmetics alleging that the defendant's RevitaLash products compete unfairly against the drug firm's Latisse treatment in California, according to a brief filed by Solicitor General Donald Verrilli with the Supreme Court. Athena has argued that the absence of FDA action against its eyelash enhancers signals that their cosmetic positioning is lawful, but Verrilli disagrees, maintaining that such litigation can supplement rather than conflict with FDA regulation.

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Attorney Steven Shapiro, a partner at Ullman, Shapiro & Ullman, LLP, offers perspective on what he considers some of the biggest challenges cosmetics companies face in the current regulatory and legal landscape, specifically when it comes to crafting claims. Story features audio clips from the attorney’s interview with “The Rose Sheet.”

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