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Price v. Philip Morris12/15/2005
hing specifically authorized by federal law, section 10b(1) will protect them from liability under the . On the other hand, the [Consumer Fraud Act] 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." Bober, 246 F.3d at 941.
The Seventh Circuit defined the issue as "whether the statements Bober complains of are sufficiently within what is authorized by federal law that Glaxo is entitled to section 10b(1) protection." Bober, 246 F.3d at 941. The only statement that the court found "potentially misleading" (Bober, 246 F.3d at 941) was the statement of Glaxo's hotline operator, who told Bober that the two tablets were "not the same medications" and that he "could not substitute two Zantac 75 tablets for one Zantac 150 tablet."Bober, 246 F.3d at 937.
The statement that the two dosages of the same drug were "not the same medication" was found to be specifically authorized by a rule formally adopted by the FDA and codified in the Code of Federal Regulations. Bober, 246 F.3d at 941. The exemption of section 10b(1) applied to this statement, the court stated, "even if the statement may have led Mr. Bober as a layperson to misunderstand what was being said." Bober, 246 F.3d at 941.
The second part of the operator's statement regarding the nonsubstitutability of the two tablets was "not so easily dealt with" because "Glaxo was required by federal law to say a certain amount and simultaneously required not to say too much." Bober, 246 F.3d at 942. Although the applicable regulations did not expressly authorize Glaxo to answer a consumer's question with the statement "you cannot substitute," the statement was consistent with federal regulations prohibiting drug companies from suggesting "off-label" uses for its products. Bober, 246 F.3d at 942.
In the end, even though there was no express authorization for the "cannot substitute" statement, the Seventh Circuit concluded that what Glaxo "chose to say and not to say was a sufficiently careful compromise to fall within what is specifically authorized by federal law." Bober, 246 F.3d at 942. The court explained further:
"The pharmaceutical industry is highly regulated, both at the federal level and internationally. Technical requirements abound, and it is not only possible but likely that ordinary consumers will find some of them confusing, or possibly misleading as the term is used in statutes like Illinois 's [Consumer Fraud Act]. But, recognizing the primacy of federal law in this field, the Illinois statute itself protects companies from liability if their actions are authorized by federal law. (Such protection would amount to nothing if it applied only to statements that were not susceptible to misunderstanding; those statements would escape liability under the [Consumer Fraud Act] in any event.) Because Glaxo's statements fall within the boundaries established by federal law, under Weatherman [186 Ill. 2d 472] and Martin [163 Ill. 2d 33] they are entitled to protection under section 10b(1) of the [Consumer Fraud Act]." Bober, 246 F.3d at 942-43.
Bober is particularly helpful to our analysis of the present case, because, unlike Lanier, 114 Ill. 2d 1, Martin, 163 Ill. 2d 33, and Jackson, 197 Ill. 2d 39, it does not concern federal disclosure requirements. Like the present case, it concerns whether the federal regulatory agency has specifically authorized the making of certain statements about the product. The Seventh Circuit has read the statutory term "specifically authorized by laws administered by" in section 10b(1) to encompass the m
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