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`NOT PRECEDENTIAL
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`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`________________
`
`No. 21-2737
`________________
`
`SEBELA PHARMACEUTICALS, INC.,
`
`
`
`Appellant
`
`
`
`
`
`v.
`
`TRUPHARMA, LLC
`
`
`
`________________
`
`On Appeal from the United States District Court
`for the District of Delaware
`(D.C. No. 1:20-cv-01677)
`Circuit Judge: Honorable Stephanos Bibas
`
`________________
`
`Submitted Pursuant to L.A.R. 34.1(a) on
`July 11, 2022
`________________
`
`Before: GREENAWAY, JR., MATEY, and RENDELL, Circuit Judges
`
`(Opinion filed: September 7, 2022)
`
`________________
`
`OPINION**
`________________
`
`
` The Honorable Stephanos Bibas, Circuit Judge sitting by designation pursuant to 28
`U.S.C. §291(b).
`
` *
`
` This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
`constitute binding precedent.
`
`
`
`

`

`
`
`
`
`GREENAWAY, JR., Circuit Judge
`
`I.
`
`Introduction
`
`Sebela Pharmaceuticals, Inc. (“Sebela”) and TruPharma, LLC (“TruPharma”) are
`
`competing drug manufacturers. Sebela sued TruPharma for alleged violations of the
`
`Lanham Act and a handful of other common law claims. After noting that Sebela had
`
`two failed attempts at stating a viable claim, the District Court dismissed the amended
`
`complaint with prejudice. We agree with the District Court’s pithy and well-crafted
`
`opinion and will affirm.
`
`II. Background
`
`Sebela sells a hemorrhoid cream under the names PRAMOSONE and
`
`ANALPRAM (“PRAMASONE Cream”). PRAMASONE Cream is a non-FDA approved
`
`cream consisting of hydrocortisone acetate 2.5% w/w and pramoxine hydrochloride 1%
`
`w/w. Like Sebela, TruPharma is in the pharmaceutical business and it has a competing
`
`cream on the market. This competing cream also contains hydrocortisone acetate 2.5%
`
`w/w and pramoxine hydrochloride 1% w/w.
`
`Both companies, as do others, submit information about their products to drug
`
`databases. These databases are used by manufacturers to market their products, including
`
`a product’s specifications and pricing. The databases, generally, assign each product
`
`submitted a multi-character code, and then list together products with “the same
`
`ingredients, strength, form, and dosage routes.” App. Vol. II, 16 ¶ 36. Pharmacies,
`
`pharmacy benefit managers, and prescription fillers are then able to see the grouped
`
`
`
`2
`
`

`

`
`
`products in order to make buying and prescription decisions. Because Sebela and
`
`TruPharma’s products share the “exact same strength and active ingredients,” the
`
`independent drug databases list these products together. Id. at 19, ¶ 54.
`
`As relevant to this appeal, in an amended complaint, Sebela sued TruPharma
`
`under the Lanham Act for alleged direct and contributory false advertising and unfair
`
`competition. Sebela also sued for violations of the Delaware Deceptive Trade Practices
`
`Act, and under common law for unfair competition and tortious interference with contract
`
`or prospective contractual relations.1 Sebela alleged that by communicating its product
`
`specifications to the drug databases, TruPharma “represented and continues to represent”
`
`its product as an “equivalent of Sebela’s PRAMOSONE Cream” or a “‘generic’ version
`
`of PRAMASONE Cream.” App. Vol. II 13, ¶¶ 24, 26.
`
`TruPharma filed a motion to dismiss the amended complaint, which the District
`
`Court granted. In its memorandum opinion, the District Court explained that Sebela
`
`“point[ed] to no statement that [was] false.” App. Vol. II, 322. Sebela also failed to
`
`plausibly allege misleading statements, because the two companies’ drugs were, in fact,
`
`“pharmaceutically equivalent.” Id. at 323 (citation and internal quotation marks omitted).
`
`TruPharma had no control over how its product appeared in the drug databases. Finally,
`
`Sebela’s speculation that pharmacists substituted TruPharma’s cream for Sebela’s cream
`
`did not amount to deception on the part of TruPharma: “[P]harmacists substitute drugs
`
`
`1 Sebela’s amended complaint eliminated a prior unjust enrichment claim.
`
`
`
`3
`
`

`

`
`
`based on cost” and TruPharma’s product “costs about half the wholesale or insurance
`
`price of Sebela’s.” Id. (citations omitted).
`
`Sebela timely appealed the dismissal.
`
`III. Discussion2
`
`The District Court concluded that Sebela failed to plausibly allege that TruPharma
`
`made false or misleading statements. We agree.
`
`Both Sebela and TruPharma have non-FDA approved medications that contain the
`
`same ingredients in the same ratios. Pharmaceutical drug databases list these two drugs
`
`together, showing TruPharma’s drug as an alternative to Sebela’s product. This listing
`
`together is the heart of Sebela’s complaint. Because their two products were listed
`
`together, Sebela argues that TruPharma engaged in false or deceptive practices that
`
`harmed its sales. The mere listing together of these products in the databases, however, is
`
`not an actionable claim against TruPharma. TruPharma does not control the listing
`
`process. As Sebela’s complaint alleges, the drug databases “identify all drugs that have
`
`the same ingredients, strength, form, and dosage routes” and then the databases list those
`
`products together. App. Vol. II, 16 ¶ 36.
`
`Among other things, false or misleading advertising under the Lanham Act
`
`requires a competitor to “misrepresent[] the nature, characteristics, qualities, or
`
`
`2 The District Court had jurisdiction over the Lanham Act claims pursuant to 15 U.S.C.
`§ 1121(a) and 28 U.S.C. § 1331; it had jurisdiction over the state-law claims under 28
`U.S.C. § 1367. As an appeal from a final order, we have jurisdiction under 15 U.S.C.
`§ 1121(a) and 28 U.S.C. § 1291. We exercise plenary review over the District Court’s
`dismissal for failure to state a claim. Beasley v. Howard, 14 F.4th 226, 231 (3d Cir.
`2021) (citing Watters v. Bd. of Sch. Dirs., 975 F.3d 406, 412 (3d Cir. 2020)).
`
`
`
`4
`
`

`

`
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`geographic origin” of its product. 15 U.S.C. § 1125(a)(1)(B). Sebela itself stated that
`
`TruPharma may have provided “truthful information” about its product to the databases.
`
`Reply Br. at 4. Further, as the District Court noted, Sebela points to no statement by
`
`TruPharma that is false about TruPharma’s product. For similar reasons, the amended
`
`complaint also lacks a cognizable claim that information provided to the databases is
`
`misleading. Indeed, Sebela’s amended complaint states that the two companies’ products
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`share the “exact same strength and active ingredients.” App. Vol. II, 19 ¶ 54. That
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`independent drug databases list together the products that contain the same ingredients in
`
`the same ratios and taken by the same means, does not give Sebela grounds to sue
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`TruPharma under the Lanham Act.
`
`Finally, for all the reasons that Sebela’s Lanham Act claims fail, its other claims
`
`are likewise deficient. Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 481
`
`(3d Cir. 1994) (remanding for the district court to reconsider an appellant’s other claims
`
`only after we reversed the district court’s judgment as to the Lanham Act claims
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`premised on the same allegations).
`
`IV. Conclusion
`
`For the foregoing reasons, we will affirm the District Court’s ruling.
`
`
`
`
`
`5
`
`

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