Estelle Bober, of the Estate of Mortimer Bober, on Behalf of Mortimer Bober and All Others Similarly Situated v. Glaxo Wellcome Plc, Warner Lambert Corporation, and Warner Wellcome Consumer Healthcare IncorporatedEstelle Bober, of the Estate of Mortimer Bober, on Behalf of Mortimer Bober and All Others Similarly Situated v. Glaxo Wellcome Plc, Warner Lambert Corporation, and Warner Wellcome Consumer Healthcare Incorporated
Mortimer Bober brought a class action lawsuit against the firms that manufacture and market Zantac 75 and Zantac 150, the over-the-counter and prescription strength forms of the stomach acid reliever ranitidine, on the ground that the firms provide consumers with false and misleading information about the substitutability of the two drugs, in violation of Illinois law. The district court dismissed Bober‘s claims under
Zantac 150 is manufactured and sold by British drug company Glaxo Wellcome PLC and its American subsidiary Glaxo Wellcome, Inc. The Food and Drug Administration (“FDA“) has approved it for use in the treatment of various digestive tract conditions, including certain kinds of ulcers and certain esophageal conditions. As its name suggests, it contains 150 milligrams of ranitidine. And, it is available only with a prescription.
Zantac 75 is manufactured by Glaxo Wellcome, Inc. and is sold by Warner-Lambert Consumer Healthcare, a joint venture formed by Glaxo Wellcome, Inc. and Warner-Lambert Company, another American drug company. According to its FDA-approved packaging, it is to be used for the relief and prevention of heartburn associated with acid indigestion and sour stomach. As its name too suggests, it contains 75 milligrams of ranitidine. But, it may be purchased without a prescription.
Bober‘s complaint alleges that Glaxo Wellcome PLC and the other three defendants (“Glaxo“) provide false and misleading information regarding whether Zantac 75 can be substituted for Zantac 150. The answer to that question was important to Bober because, at the time he filed this lawsuit, he was paying $1.47 per tablet for the Zantac 150 his doctor had prescribed for him, while an equivalent dose of Zantac 75 (two tablets) cost $.80. In an effort to obtain information on the substitutability of Zantac 75 and Zantac 150, Bober twice called a consumer hotline for Zantac 75 users set up by Warner-Lambert. When Bober first called the Zantac 75 consumer hotline, the hotline operator “told Mr. Bober that Zantac 75 and Zantac 150 were not the same medications, and that Mr. Bober could not substitute two Zantac 75 tablets for one Zantac 150 tablet.” When Bober called the hotline a second time, a recorded message advised Bober, “If your doctor has directed you to take prescription Zantac, you should not substitute Zantac 75 for your prescription.”
Bober‘s complaint also notes that Warner Lambert maintains a web site providing information about Zantac 75, although the complaint does not say whether Bober ever visited the web site. At the time Bober filed his complaint, a page on that web site answering frequently asked questions about Zantac 75 responded to a question about whether Zantac 75 could be substituted for Zantac 150 by informing visitors, “If your physician has prescribed a medicine, you should not substitute any other medicine for your prescription. You should always ask your physician any questions you may have about changing your medication.”
In his complaint, Bober claims that the three quoted statements are false and misleading because, contrary to what the three statements imply, Zantac 75 and Zantac 150 contain the same medicine (ranitidine) and are therefore readily substitutable. On that basis, Bober‘s complaint alleges that the three statements violate the Illinois Consumer Fraud and Deceptive Business Practices Act (“CFA“) and the similar laws of other states.1 Bober‘s complaint also alleges that the defendants illegally conspired to violate the CFA and that the defendants were unjustly enriched by their illegal practices. The district court dismissed Bober‘s claims under
A
In relevant part, the CFA provides:
Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act“, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.
In particular, Glaxo argues that the statements Bober‘s complaint identifies as the deceptive acts or practices supporting his CFA claim are, as a matter of law, not deceptive. Under the CFA, a statement is deceptive if it creates a likelihood of deception or has the capacity to deceive. People ex rel. Hartigan v. Knecht Servs., Inc., 575 N.E.2d 1378, 1387 (Ill. App. Ct. 1991); see also Graphic Sales, Inc. v. Sperry Univac Div., Sperry Corp., 824 F.2d 576, 580 (7th Cir. 1987). Thus, in determining whether the allegations in Bober‘s complaint state a claim for relief that satisfies the requirements of Rule 12(b)(6), we ask whether the allegedly false and misleading statements on which Bober based his CFA claim can be read to create a likelihood of deception or to have the capacity to deceive.
Bober‘s estate contends that the three statements at issue are deceptive in essentially three ways. First, Bober‘s estate asserts that the statements falsely claim that Zantac 75 and Zantac 150 do not contain the same medicine. None of the statements, however, expressly makes such a claim. The statements do claim that the two drugs are different medications, but that claim is completely true. The drugs are approved for very different maladies, went through different approval processes, and are sold in different ways. Moreover, to the extent that anyone could imply from the statements at issue that the drugs contain different medicine, information available to Zantac users, and in Bober‘s possession, would dispel any such implication. Cf. Tudor v. Jewel Food Stores, Inc., 681 N.E.2d 6, 8 (Ill. App. Ct. 1997) (dismissing a CFA claim on the ground that the allegedly deceptive act was not deceptive in light of all the information available to the plaintiff); Saunders v. Michigan Ave. Nat‘l Bank, 662 N.E.2d 602, 607-08 (Ill. App. Ct. 1996) (same). The web page that answers frequently asked questions about Zantac 75 (a printout of which is attached to Bober‘s complaint) expressly states that Zantac 75 and Zantac 150 contain the same medicine. Likewise, the packaging information for Zantac 75 (which is also attached to Bober‘s complaint) strongly suggests the same fact when it explains that the active ingredient in Zantac 75 is ranitidine and promotes Zantac 75‘s safety by noting that prescription strength Zantac has an excellent safety record. Put simply, none of the three statements at issue can reasonably be read as falsely claiming or implying that Zantac 75 and Zantac 150 do not contain the same medicine.
Finally, Bober‘s estate asserts that the statements at issue both claim and imply that Zantac 75 simply cannot be substituted for Zantac 150, despite the fact that it would be perfectly appropriate for a doctor to recommend such a substitution. Again, the problem for Bober‘s estate is that examining the statements at issue, together and in the context of the other information available to Zantac users, eliminates any possibility of deception with regard to substitutability. Cf. Tudor, 681 N.E.2d at 8; Saunders, 662 N.E.2d at 607-08. From such a perspective, the statements discouraging substitution can only be read to discourage users from making a substitution without consulting their physicians. So read, the statements do not falsely claim or imply that Zantac 75 cannot be substituted for Zantac 150. As a matter of law, none of the three statements on which Bober based his CFA claims is deceptive.
B
Alternatively, Glaxo argues that all three of the statements are protected by section 10b(1) of the CFA, which excludes from liability “actions . . . specifically authorized by laws administered by any regulatory body or offices acting under statutory authority of this State or the United States.”
the relevant portion of the CFA‘s exemption provision is not entirely clear on the question of what is meant by “specifically authorized.” Contrast Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 713 N.E.2d 543, 547-51 (Ill. 1999); Lanier v. Assocs. Fin., Inc., 499 N.E.2d 440, 447 (Ill. 1986); Jackson v. South Holland Dodge, Inc., 726 N.E.2d 1146, 1151-55 (Ill. App. Ct. 2000); Mario‘s Butcher Shop & Food Ctr., Inc. v. Armour & Co., 574 F. Supp. 653, 655-56 (N.D. Ill. 1983), with Martin v. Heinhold Commodities, Inc., 643 N.E.2d 734, 742-43 (Ill. 1994); Pawlikowski v. Toyota Motor Credit Corp., 722 N.E.2d 767, 770-75 (Ill. App. Ct. 1999), appeal denied, 729 N.E.2d 498 (Ill. 2000); Heastie v. Cmty. Bank of Greater Peoria, 690 F. Supp. 716, 720-21 (N.D. Ill. 1988). See also Robinson v. Toyota Motor Credit Corp., 735 N.E.2d 724, 733-34 (Ill. App. Ct. 2000), appeal allowed, 742 N.E.2d 335 (Ill. 2000); Aurora Firefighter‘s Credit Union v. Harvey, 516 N.E.2d 1028, 1032-34 (Ill. App. Ct. 1987).
Taken together, the cases stand for the proposition that the state CFA will not impose higher disclosure requirements on parties than those that are sufficient to satisfy federal regulations. If the parties are doing something specifically authorized by federal law, section 10b(1) will protect them from liability under the CFA. On the other hand, the CFA exemption is not available for statements that manage to be in technical compliance with federal regulations, but which are so misleading or deceptive in context that federal law itself might not regard them as adequate.
The question is thus whether the statements Bober complains of are sufficiently within what is authorized by federal law that Glaxo is entitled to section 10b(1) protection. On this question, we limit our examination to the operator‘s statement--the only one that is even potentially misleading.4 The regulations implementing the FDCA are extensive and extremely detailed. Of particular relevance to the “different medications” part of the operator‘s statement are the regulations defining what constitutes a “new drug.” A drug may be considered new based on “[t]he newness of use of such drug in diagnosing, curing, mitigating, treating, or preventing a disease . . . even though such drug is not a new drug when used in another disease or to affect another structure or function of the body.”
(i) the following terms may be used interchangeably in the labeling of OTC drug products, provided such use does not alter the labeling of OTC drug products . . .
(52) “medication(s)” or “medicine(s)” or “drug(s)”
The second half of the operator statement is not so easily dealt with, but ultimately we believe that the Illinois courts would find that it too was specifically authorized. The situation here is not a common one. When Mr. Bober asked whether he could substitute Zantac 75 for Zantac 150, the operator said he “could not.” In assessing whether this was a specifically authorized response, it is significant that the federal regulations governing drug labeling and advertising imposed competing constraints on Glaxo, such that Mr. Bober‘s question was particularly tricky to answer. The manufacturer of a drug may not recommend or even suggest uses for a drug that are not approved by the FDA or supported by sufficient medical evidence.
Glaxo chose to reconcile its competing obligations by answering Bober‘s question with the statement “you cannot substitute” Zantac 75 for Zantac 150. This statement was technically accurate, because only Bober‘s doctor could approve an “off-label” use for Zantac 75 and the substitution of one drug for the other. The statement was also consistent with those federal regulations requiring Glaxo to refrain from suggesting “off-label” uses for Zantac 75. In protecting itself on that side, however, Glaxo predictably opened itself up to the claim Mr. Bober is now making, namely that the statement improperly suggested that Zantac 150 was superior to Zantac 75. While Glaxo could have added “ask your doctor” without being accused of suggesting an “off-label” use and thus perhaps struck a more perfect balance between its competing regulatory obligations, under the circumstances what it chose to say and not to say was a sufficiently careful compromise to fall within what is specifically authorized by federal law.
C
Bober‘s complaint does not state a claim for relief under the CFA, and the district court properly dismissed Bober‘s CFA claim. Because Bober‘s civil conspiracy claim depends on his establishing that the defendant drug companies violated the CFA, the district court also properly dismissed that claim. See Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994). Our conclusion is the same with respect to Bober‘s unjust enrichment claim, as, in the absence of any deception on the part of the defendants, the requisite violation of “fundamental principals of justice, equity, and good conscience” is not present. See Alliance Acceptance Co. v. Yale Ins. Agency, Inc., 648 N.E.2d 971, 976-77 (Ill. App. Ct. 1995) (quoting HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 678-79 (Ill. 1989)).
III
For the foregoing reasons, Bober‘s complaint fails to state a claim for relief. Accordingly, we Affirm the judgment of the district court.
III
DIANE P. WOOD, Circuit Judge, concurring.
Although I agree with the majority‘s ultimate disposition of this case, my reasons differ in one significant respect from theirs. The majority finds that none of the three statements on which Bober based his claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (CFA),
Although the majority acknowledges that these were three representations made at three different times, it analyzes the Bober claim as if he either heard everything at once or as if no individual statement could be deceptive for CFA purposes if the aggregate of everything the defendants said about Zantac would ultimately have given an accurate picture. Indeed, at page 938, ante, the majority squarely states that “to the extent that anyone could imply from the statements at issue that the drugs contain different medicine, information available to Zantac users, and in Bober‘s possession, would dispel any such implication.” In apparent support of that point, it then cites two Illinois cases for the broad proposition that the claim of deception had to be assessed in light of all available information, even information that Mr. Bober might not have seen personally. See Tudor v. Jewel Food Stores, 681 N.E.2d 6 (Ill. App. Ct. 1997); Saunders v. Michigan Ave. Nat‘l Bank, 662 N.E.2d 602 (Ill. App. Ct. 1996).
But neither Tudor nor Saunders stands for such a sweeping rule. In both these cases, all of the relevant information that the court thought should be taken into account when assessing deceptiveness was given to the plaintiff at the time of the disputed transaction. Even if we can assume that consumers will assimilate all the information they are given on a given occasion, I find no Illinois case holding that a company can avoid potential liability for deceptive statements if it has buried further explanatory material on a web site or in a brochure that some consumers may never see. It is even worse if, as here, the absent information would only potentially save an otherwise misleading statement. I am quite troubled by the implication one could draw from the majority‘s opinion that consumers have such an unbounded duty of inquiry. Such a holding would be inconsistent with Illinois‘s understanding of its own law, which requires that the statute be interpreted in a way consistent with its strong consumer protection purpose. What if Mr. Bober had stopped with the first telephone call, and never heard the recorded message? What if he had no access to a computer, or was not comfortable using one, and thus never visited the web site? The only answer that I can give to these questions is that Illinois law recognizes these risks and that is why it requires each separate statement to be assessed on its own. As was the case in Saunders and Tudor, relevant context is limited to particular occasions.
The same analysis applies to the statement on the web site. Once again, it cautions the reader to check with the physician before making any changes in medication. And once again, apart from matching what we understand plaintiffs now to be arguing, this advice reflects the accurate fact that the physician may have had good and sufficient reasons to prefer the prescription form of the drug. (Perhaps the physician does not care; but the web site leaves open the possibility that the physician may authorize substitution of the non-prescription form. It in no way hints that this would be out of the question.)
The operator, however, gave Mr. Bober a different message. That message had two parts, both of which I find problematic. First, the operator said that Zantac 75 and Zantac 150 were not the “same medications“; second, he or she said that Mr. Bober “could not” substitute one for the other. From the layperson‘s point of view, which Illinois law requires us to use, see, e.g. Daley v. Datacom Sys., Corp., 585 N.E.2d 51, 66 (Ill. 1991) (affirming appeals court ruling that demand letters could have misled the parking violators who received them), both of these representations might be shown to be misleading. Even if someone who had spent a career in the pharmaceutical industry would recognize that as a matter of federal regulation the two forms of Zantac are different “medications,” see the majority‘s discussion at page 941, ante, a trier of fact might well conclude that an average consumer, asking whether she could substitute the products, would be misled by the statement “they are different medications” into believing that Zantac 75 could in no circumstances be used to treat the illness for which she was taking Zantac 150. Webster‘s Third New International Dictionary defines the term “medication” to mean, among other things, “a medicinal substance: medicament.” Webster‘s Third New International Dictionary of the English Language Unabridged 1402 (1993). The word “medicament” in turn is defined as “a substance (as a chemical, a medicine, or an ointment) used in therapy.” Id. And finally, the first definition of the word “medicine” is “a substance or preparation used in treating disease.” Id. At a pragmatic level, therefore, given that Zantac 75 and Zantac 150 have the same active ingredient and, as we must assume here, might both be used to treat the same disease, the average consumer could surely consider them to be the same medication and would be misled if told otherwise. There is a difference in form that might matter, but the person who heard only the operator‘s message would be misled--or so a finder of fact could conclude. Cf. Daley, 585 N.E. 2d at 66 (emphasizing that whether a statement is misleading is “a factual issue which must be decided by the trier of fact.“); Gammon v. GC Services L. P., 27 F.3d 1254, 1259 (7th Cir. 1994) (Easterbrook, J., concurring) (agreeing that “the trier of fact must inquire whether a misleading implication arises from an objectively reasonable reading of [a] communication” allegedly made in violation of a federal consumer credit protection statute); United States v. Kaadt, 171 F.2d 600, 604 (7th Cir. 1949) (treating question of whether drug label is misleading as issue for the trier of fact).
As an initial matter, therefore, I would find that the Bober plaintiffs raised a genuine issue of fact about the deceptive nature of the operator statement and therefore stated a claim under the CFA. This statement was not a mere statement of opinion for CFA purposes, because (a trier of fact could find) it was made in such a way that the consumer could reasonably treat it as a statement of fact. See Totz v. Continental DuPage Acura, 602 N.E.2d 1374, 1383 (Ill. App. Ct. 1992); Duhl v. Nash Realty Inc., 429 N.E.2d 1267, 1277 (Ill. App. Ct. 1981).
It is important that we do not, in our zeal to respect the limits federal law places on the pharmaceutical industry, adopt an impermissibly narrow interpretation of a general state law like the CFA that protects consumers in every market from acupuncture to zippers. In my opinion, the majority has made just such a misstep, and I therefore respectfully register my disagreement with that part of its opinion.
C