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`NOT PRECEDENTIAL
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`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
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`No. 21-2737
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`SEBELA PHARMACEUTICALS, INC.,
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`Appellant
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`v.
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`TRUPHARMA, LLC
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`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
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`Submitted Pursuant to L.A.R. 34.1(a) on
`July 11, 2022
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`Before: GREENAWAY, JR., MATEY, and RENDELL, Circuit Judges
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`(Opinion filed: September 7, 2022)
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`OPINION**
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` The Honorable Stephanos Bibas, Circuit Judge sitting by designation pursuant to 28
`U.S.C. §291(b).
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` *
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` This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
`constitute binding precedent.
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`GREENAWAY, JR., Circuit Judge
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`I.
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`Introduction
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`Sebela Pharmaceuticals, Inc. (“Sebela”) and TruPharma, LLC (“TruPharma”) are
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`competing drug manufacturers. Sebela sued TruPharma for alleged violations of the
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`Lanham Act and a handful of other common law claims. After noting that Sebela had
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`two failed attempts at stating a viable claim, the District Court dismissed the amended
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`complaint with prejudice. We agree with the District Court’s pithy and well-crafted
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`opinion and will affirm.
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`II. Background
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`Sebela sells a hemorrhoid cream under the names PRAMOSONE and
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`ANALPRAM (“PRAMASONE Cream”). PRAMASONE Cream is a non-FDA approved
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`cream consisting of hydrocortisone acetate 2.5% w/w and pramoxine hydrochloride 1%
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`w/w. Like Sebela, TruPharma is in the pharmaceutical business and it has a competing
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`cream on the market. This competing cream also contains hydrocortisone acetate 2.5%
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`w/w and pramoxine hydrochloride 1% w/w.
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`Both companies, as do others, submit information about their products to drug
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`databases. These databases are used by manufacturers to market their products, including
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`a product’s specifications and pricing. The databases, generally, assign each product
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`submitted a multi-character code, and then list together products with “the same
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`ingredients, strength, form, and dosage routes.” App. Vol. II, 16 ¶ 36. Pharmacies,
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`pharmacy benefit managers, and prescription fillers are then able to see the grouped
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`2
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`products in order to make buying and prescription decisions. Because Sebela and
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`TruPharma’s products share the “exact same strength and active ingredients,” the
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`independent drug databases list these products together. Id. at 19, ¶ 54.
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`As relevant to this appeal, in an amended complaint, Sebela sued TruPharma
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`under the Lanham Act for alleged direct and contributory false advertising and unfair
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`competition. Sebela also sued for violations of the Delaware Deceptive Trade Practices
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`Act, and under common law for unfair competition and tortious interference with contract
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`or prospective contractual relations.1 Sebela alleged that by communicating its product
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`specifications to the drug databases, TruPharma “represented and continues to represent”
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`its product as an “equivalent of Sebela’s PRAMOSONE Cream” or a “‘generic’ version
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`of PRAMASONE Cream.” App. Vol. II 13, ¶¶ 24, 26.
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`TruPharma filed a motion to dismiss the amended complaint, which the District
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`Court granted. In its memorandum opinion, the District Court explained that Sebela
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`“point[ed] to no statement that [was] false.” App. Vol. II, 322. Sebela also failed to
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`plausibly allege misleading statements, because the two companies’ drugs were, in fact,
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`“pharmaceutically equivalent.” Id. at 323 (citation and internal quotation marks omitted).
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`TruPharma had no control over how its product appeared in the drug databases. Finally,
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`Sebela’s speculation that pharmacists substituted TruPharma’s cream for Sebela’s cream
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`did not amount to deception on the part of TruPharma: “[P]harmacists substitute drugs
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`1 Sebela’s amended complaint eliminated a prior unjust enrichment claim.
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`3
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`based on cost” and TruPharma’s product “costs about half the wholesale or insurance
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`price of Sebela’s.” Id. (citations omitted).
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`Sebela timely appealed the dismissal.
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`III. Discussion2
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`The District Court concluded that Sebela failed to plausibly allege that TruPharma
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`made false or misleading statements. We agree.
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`Both Sebela and TruPharma have non-FDA approved medications that contain the
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`same ingredients in the same ratios. Pharmaceutical drug databases list these two drugs
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`together, showing TruPharma’s drug as an alternative to Sebela’s product. This listing
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`together is the heart of Sebela’s complaint. Because their two products were listed
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`together, Sebela argues that TruPharma engaged in false or deceptive practices that
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`harmed its sales. The mere listing together of these products in the databases, however, is
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`not an actionable claim against TruPharma. TruPharma does not control the listing
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`process. As Sebela’s complaint alleges, the drug databases “identify all drugs that have
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`the same ingredients, strength, form, and dosage routes” and then the databases list those
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`products together. App. Vol. II, 16 ¶ 36.
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`Among other things, false or misleading advertising under the Lanham Act
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`requires a competitor to “misrepresent[] the nature, characteristics, qualities, or
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`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)).
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`4
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`geographic origin” of its product. 15 U.S.C. § 1125(a)(1)(B). Sebela itself stated that
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`TruPharma may have provided “truthful information” about its product to the databases.
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`Reply Br. at 4. Further, as the District Court noted, Sebela points to no statement by
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`TruPharma that is false about TruPharma’s product. For similar reasons, the amended
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`complaint also lacks a cognizable claim that information provided to the databases is
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`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
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`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.
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`Finally, for all the reasons that Sebela’s Lanham Act claims fail, its other claims
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`are likewise deficient. Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 481
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`(3d Cir. 1994) (remanding for the district court to reconsider an appellant’s other claims
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`only after we reversed the district court’s judgment as to the Lanham Act claims
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`premised on the same allegations).
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`IV. Conclusion
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`For the foregoing reasons, we will affirm the District Court’s ruling.
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`5
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