Lower court decisions identifying Athena Cosmetics, Inc.'s RevitaLash products as unapproved drugs that compete unfairly against Allergan's Latisse drug could have broader legal implications for the cosmetics industry if the Supreme Court denies the firm's request for review. Already beleaguered by false-advertising class actions on the tails of FDA warning letters, firms could be at further risk of being hit with opportunistic lawsuits if it's left to federal courts to determine products' intended use and regulatory status.
Cosmetic firms already are at risk of being sued following an FDA warning letter for overreaching product claims, but a pending decision from the U.S. Supreme Court could incentivize litigation against companies even in instances where FDA has been silent regarding their marketing.
Athena Cosmetics, Inc. awaits the Supreme Court's decision on its request for a hearing following lower court rulings that determined...