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When it Comes to Eye Drops, Supreme Court May Decide Whether Size Matters

By Staff
Wednesday, April 11, 2018 12:21 AM


FORT WORTH, Texas—A legal dispute over the design of eye drop bottles and the size of the eye drop they dispense may soon be moving from federal appeals courts to the U.S. Supreme Court. At the center of the dispute is a class action suit brought by 24 consumers against big pharma names such as Alcon, Allergan, Bausch + Lomb, Merck, Pfizer, Sandoz and Valeant Pharmaceuticals . The consumers claim that some FDA-approved prescription eye drops sold in bottles designed with dropper tips “dispense more liquid than the relevant portion of the human eye can hold at any one time.”

They contend that since the entire amount of each drop cannot be contained within the eye—where it is pharmaceutically beneficial—the bottle’s design necessarily results in a portion of each drop being wasted, resulting in an “unfair or unconscionable practice under state consumer protection statutes.” To remedy the problem, which they say has caused them economic harm, the consumers would like the eye drop manufacturers to redesign their bottles to dispense smaller drops.

To date, two federal courts have heard the case. The Seventh Circuit court rejected the consumers’ argument. However, the Third Circuit ruled in favor of the consumers, despite the dissents of four judges.

In March, the pharma companies, acting together, asked the Supreme Court to review the case, arguing that the Third Circuit’s decision was erroneous. An Alcon spokesperson told VMAIL, “We believe this litigation has no merit and note that it was already dismissed twice by the district court. We, along with other companies that are defendants in this case, have therefore filed a petition with the United States Supreme Court to review the decision of the Third Circuit Court of Appeals.

“The Third Circuit’s decision also differs from a prior ruling by the Seventh Circuit that stated the plaintiffs’ same allegations were speculative and, therefore, lacked standing under Article III of the U.S. Constitution. The allegations are not related to the safety, quality or efficacy of the medicines alleged to be at issue. We await the Supreme Court’s review of the decision and to bring this matter to conclusion,” the Alcon spokesperson said.
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