A U.S. judge has ruled Eli Lilly can keep making marketing claims challenged by Novo pending a ruling on a court case brought by the Danish drugmaker.
Novo filed a lawsuit against Lilly in July where it accused its rival of running “false and misleading” ads for GLP-1 drugs that caused “irreparable harm” to its business and to patients. As part of the case, Novo asked the court to temporarily stop Lilly from making the disputed claims in its ads. Following a two-day hearing in August, the judge on Monday ruled against Novo in a 25-page opinion.
Lilly argued successfully that Novo’s own advertising should prevent it from securing a pause on the ads. Novo accused Lilly of making claims based on outdated trials. In making that accusation, Novo “turns a blind eye to its own advertising history,” the judge said.
“Novo engaged in a nearly identical advertising strategy and now complains because it is being subjected to similar conduct,” the judge ruled. While noting that Lilly’s actions “might arguably be somewhat less palatable,” the judge ruled that Novo’s advertising history undermined its case.
The Danish drugmaker continued to make superiority claims based on its Sustain-7 clinical trial after Lilly received FDA approval for higher doses of Trulicity, the judge explained. The ads, which the judge said Novo stopped running “mere days before filing this lawsuit,” lacked any acknowledgement or disclaimer that higher doses of Trulicity were available.
Lilly’s victory is an early win in an ongoing dispute. The bigger question of whether Lilly made false and misleading claims remains unresolved, as a Novo spokesperson said via email.
"While we are disappointed with the Court’s decision, today's ruling did not decide the question of whether Lilly's advertising is false and misleading and this litigation is still ongoing," the spokesperson said. "Novo is focused on protecting patients and consumers from misleading advertising. Everyone deserves clear, accurate and up-to-date information when making decisions about their health."
The judge shared an early assessment of the case as part of his opinion, stating that he found Novo’s case “less than persuasive” based on a “very preliminary record.” Novo concedes that “Lilly makes no actual misrepresentations in the challenged ads,” the judge said. The judge added that “Novo’s theory of this case appears to pointedly ignore the extent to which a prescribing doctor influences a would-be patient with regard to choosing a GLP-1.”
Lilly argued that the disputed ads were less impactful than Novo claimed. The U.S. drugmaker provided evidence that the effect of the challenged ads on product sales was “negligible, if any,” the judge said. Prescriptions for Novo’s products were stable over the three months when the challenged ads ran.