Companies Ask High Court to Hear Eye Drop Case
Several drug companies are asking the Supreme Court to resolve differences between Circuit Courts of Appeals on the question of whether consumers who think they might have paid less for treatment if a drug product were packaged differently is sufficient to establish an economic injury that can be subject of a suit. The cases involve consumers of FDA-approved prescription eye drops who claim that the drops are wastefully large. The consumers’ economic theory is that they would have paid less for their treatment if the bottles were designed differently to dispense smaller drops.
In one case, the 7th Circuit Court of Appeals held that the consumers had not alleged injury in fact and thus lacked standing under Article III of the Constitution. However, in a separate but identical case, the 3rd Circuit Court of Appeals held, over the dissents of four judges, that the consumers had alleged a sufficiently cognizable injury to grant standing.
In their petition asking the Supreme Court to hear their appeal of the 3rd Circuit decision, the drug companies list three reasons why the case should be heard: (1) the 3rd Circuit decision “creates a conflict in the courts of appeals on materially identical facts”; (2) the 3rd Circuit decision “was erroneous”; and (3) the question raised is an important and recurring one that warrants Supreme Court review in this case.