Genus Lifesciences Inc. v. Lannett Co.

Citation: 378 F. Supp. 3d 823Docket: Case No. 18-cv-07603-WHO

Court: District Court, N.D. California; May 3, 2019; Federal District Court

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William H. Orrick, a United States District Judge, adjudicated a case involving Genus Lifesciences Inc., a competitor of Lannett Company Inc. and its subsidiary Cody Laboratories, concerning the cocaine hydrochloride nasal spray market. Genus is suing Lannett and Cody for false advertising and monopoly maintenance related to Lannett's C-Topical product, which competes with Genus’s FDA-approved GOPRELTO. The court found some of Genus's claims against Lannett and Cody to be plausible, but dismissed all claims against First Databank, Inc. The dismissal was based on the conclusion that First Databank's statements were not classified as 'commercial speech' and did not influence Lannett's actions. Consequently, the court granted First Databank's motion to dismiss and partially granted Lannett and Cody's motion to dismiss.

Genus alleges that Lannett and Cody falsely promote C-Topical as FDA-approved when it is not, and that they engage in anticompetitive practices to undermine Genus's market position. The FDA approved GOPRELTO on December 14, 2017, after extensive clinical trials, allowing its use for local anesthesia during certain medical procedures. As the first FDA-approved cocaine product, GOPRELTO received new chemical exclusivity, preventing other applicants from obtaining FDA approval until December 2022. Both C-Topical and GOPRELTO share the same active ingredient and are interchangeable for specific medical uses.

The document outlines FDA regulations for marketing prescription drugs, noting that most require FDA approval via a New Drug Application (NDA) or Abbreviated New Drug Application (ANDA). Drugs may also be exempt from NDA requirements under specific conditions. Following an incident in 1984, the FDA initiated a program to identify unapproved drugs, discovering approximately 5,150 such products, which are considered illegally marketed unless they meet 'grandfathered' criteria established by the FDA.

The 2006 FDA guidance aimed to clarify enforcement discretion regarding unapproved drugs and assert that illegally marketed drugs must secure FDA approval. It established a general one-year grace period for enforcement actions against unapproved drugs when a competitor was approved. Although C-Topical’s grace period ended in December 2018, the FDA has not acted against Lannett or Cody, who launched C-Topical around 2008. Lannett monopolized the cocaine hydrochloride market from 2012 until Genus introduced Goprelto in 2017. Genus alleges that Lannett falsely advertises C-Topical as 'grandfathered,' FDA approved, and a generic of Goprelto, despite the FDA rejecting Lannett's grandfather request in November 2015 due to insufficient evidence. From December 2017 to September 2018, Lannett misrepresented C-Topical in SEC filings as being marketed under a 'preliminary new drug application,' a term Genus argues does not exist in FDA regulations. Genus asserts that C-Topical is not a generic product as it lacks an approved Abbreviated New Drug Application (ANDA), and at the time of the complaint, no ANDAs for cocaine hydrochloride products had been approved. Furthermore, Genus claims Lannett and Cody mislead customers into believing C-Topical is FDA approved through product packaging, website content, and trademark registration that mimic FDA-approved products, including the use of FDA-like labels and packaging inserts.

Lannett is identified as a generic pharmaceutical manufacturer committed to FDA standards and regulatory compliance, while Cody Laboratories emphasizes compliance with local, state, and federal regulations, particularly those of the FDA and DEA. Cody's active pharmaceutical ingredients are used in FDA-approved products, and the company is focused on improving its quality systems in line with FDA guidance. Genus argues that both companies mislead consumers by advertising C-Topical, which the FDA has not approved, as a topical solution for local anesthesia in oral and laryngeal areas. Genus claims this falsely implies FDA approval for C-Topical’s use, suggesting it is superior to Goprelto, which is only approved for intranasal use.

Additionally, Genus alleges that Lannett provides incomplete or misleading information to third-party intermediaries, including wholesalers, group purchasing organizations (GPOs), and integrated delivery networks (IDNs). These intermediaries rely on information from manufacturers to advertise products to pharmacies, hospitals, and doctors. For instance, McKesson Corp., a wholesaler, sells C-Topical without indicating its unapproved status. GPOs and IDNs negotiate discounts based on product volume and also gather direct information from manufacturers. Companies like First Databank aggregate drug pricing information, allowing for price comparisons across products. Genus contends that Lannett fails to disclose C-Topical's unapproved status to these intermediaries, preventing accurate representation and differentiation from Goprelto for customers.

Genus contends that customers are materially misled regarding C-Topical's FDA approval status, which is perceived as a guarantee of quality. A study indicates that 91% of pharmacists believe all dispensed products are FDA approved, reinforcing Genus's claim that customers are led to believe C-Topical is FDA approved, influencing their purchasing decisions away from Goprelto. Genus criticizes First Databank for assigning unique clinical formulation IDs (CFIs) based on drug attributes, which results in C-Topical and Goprelto being categorized differently due to their distinct routes of administration. This discrepancy leads to customer searches for C-Topical not revealing Goprelto as an alternative, perpetuating the misconception that C-Topical is the sole cocaine hydrochloride product available. Genus asserts that First Databank is complicit in Lannett's false advertising, having notified them of misleading claims about C-Topical as early as October 2, 2018. 

Additionally, Genus alleges that Lannett and Cody maintain over 99% of the cocaine hydrochloride market in the U.S., engaging in anticompetitive conduct by manipulating product categorization to limit Genus's market access. Genus defines the relevant market as encompassing both FDA approved and unapproved cocaine hydrochloride solutions, highlighting the unique dual functionality of these products as a vasoconstrictor and local anesthetic. They argue that a minor price increase would not drive customers to alternative products, asserting that the different CFIs prevent price competition. Consequently, from June to September 2018, Goprelto sold only 544 units compared to over 45,000 units of C-Topical, despite Goprelto being priced lower.

Genus asserts claims against Lannett and Cody for false advertising and unfair competition under the Lanham Act, as well as California's false advertising and unfair competition laws, and monopolization under the Sherman Act. Additionally, Genus brings contributory false advertising claims against Cody and First Databank and a direct false advertising claim against First Databank under the Lanham Act.

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it does not state a plausible claim for relief. A claim is considered plausible when the facts alleged allow the court to reasonably infer the defendant's liability, requiring more than mere speculation. The court accepts the plaintiff's allegations as true but does not accept conclusory or unreasonable inferences.

Lannett seeks to dismiss Genus's Lanham Act claims, arguing that selling an unapproved drug alone is insufficient for liability under the Act without an affirmative representation of approval, which Lannett contends it has not provided. The Lanham Act allows competitors to sue for false or misleading advertising, even in cases involving products regulated by the FDCA. A false advertisement claim under the Lanham Act requires the plaintiff to demonstrate: 1) a false statement of fact in a commercial advertisement; 2) actual or likely deception of a substantial audience segment; 3) materiality of the deception influencing purchasing decisions; 4) the statement's entry into interstate commerce; and 5) injury to the plaintiff from the false statement, either through direct sales diversion or diminished goodwill.

To establish a false advertising claim, plaintiffs must demonstrate all five elements of the applicable test. When a representation is misleading rather than overtly false, the burden of proof for a Lanham Act claim increases, necessitating evidence that the advertising misled a significant portion of the audience. Lannett argues that marketing an unapproved drug without an affirmative representation of approval is not actionable under the Lanham Act, referencing Mylan Labs. Inc. v. Matkari, which stated that merely placing a drug on the market does not imply FDA approval. The Fourth Circuit emphasized that to claim relief under the Lanham Act, a clear representation must be identified from the advertising or packaging. Lannett contends that the POM Wonderful case did not change this principle.

In contrast, Genus argues that affirmative, literally false statements are not required for liability; misleading statements can suffice. Even if an advertisement is not literally false, relief is possible under Lanham Act § 43(a) if it misleads consumers. Genus's complaint mirrors allegations from Par Sterile Prod. LLC v. Fresenius Kabi USA LLC, where implications of FDA approval, combined with consumer beliefs, were deemed sufficient for a claim. Genus asserts that Lannett misleads customers into believing C-Topical is FDA approved based on its price list and related studies, supported by a survey indicating that 91% of pharmacists believe all dispensed products are FDA approved. The adequacy of this survey data for overcoming summary judgment remains uncertain, but it is sufficient to advance beyond the motion to dismiss stage. Genus alleges that Lannett’s advertising implies FDA approval, generic status, or grandfathering, affecting a significant audience, countering Lannett's reliance on Mylan.

Additionally, for a false advertising claim, statements must meet criteria for commercial advertising, including being commercial speech from a competitor aimed at influencing consumer purchases and sufficiently disseminated to the relevant public within the industry.

Lannett argues that its references to C-Topical as 'grandfathered' or under a 'preliminary new drug application' are solely found in investor communications, including earnings calls and securities filings, which it claims are not actionable under the Lanham Act since they target investors rather than actual purchasers. Genus contends that Lannett's cited cases are not relevant as they do not address SEC filings. The court finds the distinction between investor materials and SEC filings unconvincing, noting that prior rulings have indicated SEC filings cannot support a Lanham Act claim. 

The court references three cases: 

1. **RPost Holdings, Inc. v. Trustifi Corp.** – The court ruled that statements made to potential investors were not actionable under the Lanham Act because they were not intended to influence consumer purchases and were insufficiently disseminated to potential buyers.
   
2. **Tercica, Inc. v. Insmed Inc.** – The court dismissed claims based on investor webcasts and press releases, finding no evidence that consumers attended these events or that the statements were aimed at influencing consumer purchases.

3. **Sigma Dynamics, Inc. v. E. Piphany, Inc.** – The court concluded that statements from investor calls could only be actionable if there were allegations that consumers attended these calls and that the calls were meant to influence purchases.

The court disagrees with Sigma’s reasoning regarding public statements but acknowledges that SEC filings can contribute to a Lanham Act claim if accompanied by specific allegations of intent to influence customer purchases or sufficient dissemination to the purchasing public. Ultimately, the court determines that Lannett's statements about C-Topical fail to establish a Lanham Act false advertising claim because they lack necessary context and intent to influence consumer purchases.

Lannett's assertion that statements referring to C-Topical as 'unapproved' are premature is challenged by Genus, which argues that Lannett's labeling misrepresents the drug's administration route. Lannett claims that without specific allegations demonstrating inaccuracies in its labeling, the broader scope of its label compared to Genus's is not actionable. Genus counters by citing the FDA's Data Standards Manual, asserting that C-Topical's labeling as 'topical' is misleading since mucous membranes do not constitute the outer surface of the body. Genus argues this misrepresentation leads consumers to mistakenly believe C-Topical is superior to Goprelto due to its claimed additional routes of administration. 

Genus clarifies that its case does not hinge on the safety or effectiveness of C-Topical but rather on its labeling accuracy, which is a straightforward legal determination. Lannett's reference to a prior case (Par) is deemed distinguishable because Genus is not contesting FDA approval but is addressing the correctness of the drug's labeling. 

Regarding Lannett's failure to disclose C-Topical's unapproved status to third-party intermediaries, Lannett argues that there is no legal obligation under the Lanham Act for such disclosures. However, Genus contends that Lannett could still be liable for false advertising without making direct misrepresentations. It criticizes Lannett for presenting its product as topical to wholesalers without clear indication of its unapproved status, and notes that this information is not prominently displayed on price lists, which could mislead customers into believing all listed drugs are approved. Genus's claims related to false advertising to customers are supported, but it lacks sufficient allegations regarding false advertising to intermediaries.

McKesson's absence of a statement indicating C-Topical's unapproved status does not support claims that Lannett misled McKesson. The price lists' mention of C-Topical's unapproved status being 'buried' suggests Lannett accurately reported its status, yet Lannett's labeling of C-Topical as 'topical' is alleged to be false. Regarding Lannett's website, it contends that its meta description, which describes C-Topical as generic, is not misleading when viewed alongside a landing page stating that the drug is unapproved. However, Genus argues that the unapproved status is not clearly presented, requiring additional clicks to access this information, which could mislead consumers. Lannett's claims about compliance with FDA requirements are challenged by Genus, which asserts that the compliance statements on Lannett's website do not explicitly exclude C-Topical and argue that Lannett's failure to obtain FDA approval undermines these claims. The FDA's denial of Lannett's grandfathering petition reinforces that C-Topical cannot be marketed as grandfathered or exempt from new drug requirements. For the website statements to be deemed false advertising, they must explicitly claim that C-Topical is grandfathered or approved by the FDA.

Genus does not claim that Lannett's statements are present on its website. The complaint notes that Lannett's website emphasizes its commitment to quality and FDA standards, asserting that generic pharmaceuticals are made to the same standards as brand-name medicines. While these statements may be misleading in context, Genus has not plausibly alleged that they imply C-Topical was FDA-approved or that they deceived a significant portion of recipients.

Regarding Cody's website, Genus identifies statements claiming compliance with regulations and that active pharmaceutical ingredients are used in FDA-approved products, specifically citing "Cocaine Hydrochloride USP." Lannett argues that Genus fails to show customers were misled regarding Cody's statements about active ingredients, which do not mention C-Topical, or that these statements materially affect purchasing decisions. Genus counters that it is plausible consumers could connect Cody to C-Topical and be misled by these claims. Unlike Lannett, Cody's website contains a false assertion suggesting that its active ingredients are FDA-approved, which could deceive visitors. Genus has adequately alleged that this false statement is material, as FDA approval status is vital for consumer assurance regarding product quality.

Lannett seeks to dismiss claims about misleading similarities between C-Topical's labeling and that of an FDA-approved drug, arguing that Genus's allegations are conclusory and lack factual support to show that C-Topical's labeling implied FDA approval. Genus responds that it has sufficiently claimed that customers could not determine C-Topical's unapproved status based on its packaging, especially in light of Lannett and Cody's representations of FDA compliance on their websites.

Genus contends that the packaging and labeling of C-Topical mislead consumers into believing it has FDA approval. However, the court finds this argument unpersuasive, noting that Genus's reliance on Merck Eprova AG v. Brookstone Pharm. LLC is misplaced. In Merck, the plaintiff demonstrated intentional deception by the defendant, which is not the case here. Genus has failed to provide sufficient evidence of misleading conduct, only making vague assertions about consumer deception without specific allegations of an overt false statement. 

Regarding the Sherman Act claims, Lannett asserts that Genus has not adequately stated a monopolization claim, and the court agrees. To establish a violation under Section 2, a plaintiff must show: (a) possession of monopoly power in the relevant market, (b) willful acquisition or maintenance of that power, and (c) causal antitrust injury. Genus meets the first and third elements, claiming Lannett and Cody control over 99% of the cocaine hydrochloride market and alleging harm from Lannett's actions affecting market prices and resulting in lost sales. However, to satisfy the second element, Genus must demonstrate that Lannett's conduct has an anticompetitive effect, which harms the competitive process rather than just competitors. The court emphasizes that harm to competitors alone does not meet this requirement.

Pure malice by a business competitor does not suffice to establish a claim under federal antitrust laws. For conduct to be actionable under Section 2, a monopolist must foreclose competition in a substantial share of the relevant market, as established in Kolon Indus. Inc. v. E.I. DuPont de Nemours. Co. and further explained in Tampa Electric Co. v. Nashville Coal Co. This requires demonstrating that opportunities for other traders to enter or remain in the market are significantly restricted. The Supreme Court's criteria for determining substantiality include evaluating the contract's probable effects on competition, considering the parties' relative strength, the volume of commerce involved, and the potential immediate and future impacts on competition.

In the context of a monopolization claim for false advertising, Lannett asserts that Genus has not sufficiently established a claim, arguing that the advertising's effect on competition is minimal. Lannett contends that Genus fails to prove that Lannett's statements about C-Topical were clearly false, likely to induce reliance, or made to uninformed buyers, and that these statements are not easily countered by rivals. To overcome the presumption of de minimis effect, a plaintiff must demonstrate six specific elements regarding the false advertising. Genus claims to have met the first four elements by asserting that Lannett's statements are clearly false, materially misleading, capable of inducing reliance, and aimed at uninformed buyers. However, while Genus notes that Lannett has been selling C-Topical since 2008, it has not provided details on the duration of the meta description or the online statements that are being challenged.

Genus has not adequately demonstrated that Lannett's misleading statements about C-Topical are not easily countered by rival marketing efforts. Genus asserts that Lannett makes it difficult for customers to find competing products and that customers often reorder without seeking alternatives, thus hindering rebuttals to Lannett's false promotions. However, Genus fails to explain why it has not successfully promoted its product through other means, such as an advertising campaign for Goprelto as the sole FDA-approved cocaine hydrochloride product or communicating the unapproved status of C-Topical. As a result, Genus has not sufficiently shown that Lannett's actions have significantly harmed competition.

In its monopolization claim, Genus argues that Lannett's mischaracterization of C-Topical as "topical" is part of a strategy to exclude competitors with properly nasal products. Lannett counters that Genus has not alleged any improper manipulation of First Databank's classification, asserting that the drug's label is accurate. Lannett further argues that Genus's claims are weak for three reasons: (1) the allegations pertain to only one price list and promotional channel among many; (2) Genus has not been denied access to First Databank, as it promotes its product under a different CFI number; and (3) the complaint suggests that Genus seeks to benefit from C-Topical's market acceptance without acknowledging that Lannett is not obligated to facilitate this. Despite acknowledging that labeling C-Topical as "topical" is false, Genus's claims lack the requisite substance to establish a monopolization case.

First Databank's method of assigning CFI codes based on drug characteristics, including route of administration, could lead to a misleading CFI code if C-Topical is incorrectly classified as topical. Lannett's claims regarding Genus's marketing efforts on a single promotional channel do not support a monopolization claim, as competitors may still access consumers through alternative distribution channels. Consequently, Lannett’s motion to dismiss Genus's monopolization claim is granted. 

Regarding state law claims, Lannett seeks to dismiss Genus's allegations under California’s False Advertising Law and Unfair Competition Law, arguing they are based on the same allegations as Genus's Lanham Act claims. However, since Genus has established a claim for a Lanham Act violation, Lannett's motion to dismiss the state law claims is denied.

Genus asserts two claims against First Databank: a false advertising claim under the Lanham Act and a claim for contributory false advertising, both concerning the misrepresentation of C-Topical's route of administration. First Databank contends that Genus has not demonstrated that its pricing list constitutes "commercial advertising or promotion" since it serves as a reference for subscribers rather than a tool to influence purchases. Citing legal precedent, First Databank argues that the statements in its price list do not meet the criteria for commercial speech under the Lanham Act and asserts that Genus has failed to provide sufficient factual support for its claims.

Genus argues that the standard established in Coastal Abstract is still relevant despite the Lexmark decision, as the Ninth Circuit has not overruled it and it remains consistently applied in the district. Although Lexmark may necessitate a revision of the second element of the Coastal Abstract test, the first and fourth elements remain valid. Courts outside the Ninth Circuit have also continued to apply the Coastal Abstract test, though the Fourth and Sixth Circuits have modified the second element. Genus asserts that First Databank's pricing list is not merely a reference database, as it generates significant revenue from licensees and does not provide statements of public importance that would classify it as non-commercial speech. Genus emphasizes the importance of pricing lists in commercial transactions, arguing they assist consumers in product comparisons. The definition of commercial speech is rooted in whether the speech proposes a commercial transaction, with courts considering three factors: advertising format, reference to a specific product, and economic motivation. However, no single factor is determinative, and a broader definition of commercial speech risks undermining the protection of other types of speech.

In *Central Hudson Gas & Electric Corp. v. Public Service Commission of New York*, Justice Stevens concurred, highlighting that First Databank's pricing list does not facilitate a commercial transaction with users of cocaine hydrochloride, nor does Genus claim that the information aims to induce such transactions. Genus does not assert any financial benefit for First Databank based on whether consumers choose C-Topical over Goprelto, nor does it claim a quid pro quo arrangement where First Databank receives kickbacks from sales of C-Topical. Genus argues that First Databank's business model involves exchanging information for data utilization, but this is a common practice for all drugs in the database and does not indicate a specific commercial interest. The allegations suggest First Databank seeks a comprehensive inventory of pharmaceuticals rather than promoting the success of any single product. Furthermore, Genus’s assertion that First Databank has an economic motive to accurately represent drugs merely indicates a desire for thoroughness rather than profit from specific representations. Genus posits that First Databank's market position is bolstered by its relationships with major pharmacy benefit managers and wholesalers, but this is irrelevant to the question of whether its representations about C-Topical promote a transaction with consumers. Although Genus may ultimately dispute First Databank's claim of being a mere "reference database," they have not provided sufficient facts to support this contention at this stage. First Databank references case law, including *Ariix, LLC v. NutriSearch Corp.*, which involved a plaintiff suing for false advertising under the Lanham Act after failing to secure a product accolade from a publishing entity.

The plaintiff claimed bias in the guide's staff due to previous employment with a rival, but the court rejected this argument, noting that the guide did not sell the reviewed nutritional products, had no ownership interest in the supplement companies, and did not accept paid advertisements from the rival. Consequently, the reviews were deemed non-actionable. The court highlighted that the guide's mention of the plaintiff's products and the numerous products reviewed did not support a finding of commercial speech. Although the Acella case was not a Lanham Act matter and was dismissed by stipulation, it bore factual similarities to the current case. In Acella, the plaintiff contested First Databank's reclassification of a prenatal vitamin based on FDA guidance, with the court determining that First Databank's database information was not commercial speech, despite seeking subscription sales. The court reasoned that First Databank did not engage in the sale or marketing of the listed items, likening its guide to general reference materials. Additionally, in Exeltis USA Inc. v. First Databank, the court denied a preliminary injunction against First Databank for falsely advertising product prescription requirements, emphasizing the constitutional protection of speech and allowing for unresolved contested facts at the motion to dismiss stage. However, Genus failed to adequately claim that First Databank's price list constituted commercial speech, leading to the dismissal of its false advertising claim. On contributory false advertising, First Databank asserted that liability requires intentional inducement to violate the Lanham Act, which was not established in this case.

Genus alleges that First Databank (FD) has knowingly and materially contributed to Lannett's false advertising regarding C-Topical by mischaracterizing it as "topical" and continuing to assign it a misleading CFI. Genus claims to have notified FD of this misleading advertisement by October 2, 2018. The legal context indicates uncertainty in the Circuit about whether contributory false advertising applies to non-commercial speech, as the Lanham Act is typically limited to commercial speech. Genus has not sufficiently pleaded a false advertising claim against FD, as it fails to establish that FD's pricing list constitutes commercial speech, leading to the dismissal of Genus's contributory false advertising claim as well. 

Genus requests application of the Eleventh Circuit's contributory false advertising standard from Duty Free Ams. Inc. v. Estée Lauder Cos., which requires proof that a third party engaged in false advertising that harmed the plaintiff and that the defendant contributed to that conduct. While Genus alleges Lannett's false advertising harmed it, it does not demonstrate that FD knowingly induced or materially participated in Lannett's actions. The Eleventh Circuit's examples suggest that to meet the "materially participating" prong, a plaintiff would need to show that the defendant directly controlled or monitored the third party's false advertising, a requirement Genus has not fulfilled.

The document outlines the criteria for establishing contributory liability in cases of false advertising, referencing relevant case law, including Inwood Labs. Inc. v. Ives Labs. Inc. and ADT Sec. Servs. Inc. v. Sec. One Int'l, Inc. A plaintiff must demonstrate that a defendant knowingly or intentionally participated in the false advertising, evaluated through various factors such as the extent of communication between the parties, whether the defendant encouraged the false advertising, and if the defendant showed bad faith in failing to stop it.

In the specific case involving Genus and First Databank, Genus failed to allege that First Databank directly controlled or encouraged Lannett's false advertising, nor did it claim First Databank acted with bad faith or knowingly supplied infringing products. Consequently, Genus’s claims do not meet the standards set forth in the applicable tests for contributory false advertising, leading to the dismissal of its claim against First Databank with prejudice. The motion to dismiss by Lannett is granted in part and denied in part.

Genus's claims regarding statements in SEC forms, investor calls, misstatements to third-party intermediaries, statements on Lannett's website, the labeling of C-Topical, and Sherman Act claims are dismissed, with the option to amend, while all other claims are denied. First Databank's motion to dismiss is granted. Genus's false advertising claim is also dismissed with the option to amend, while its contributory false advertising claim is dismissed with prejudice. The court rejects Genus's attempt to characterize C-Topical as "Lannett's Cocaine Drug," stating that referring to it simply as C-Topical suffices. The court accepts Genus's allegations as true for this motion but notes that Genus does not claim selling an unapproved drug is illegal. If Genus chooses to amend its complaint, it must adhere to Rule 9(b) requirements for specificity in Lanham Act false advertising claims. Lannett asserts that its marketing does not mislead, as the landing page does not imply C-Topical is generic and clearly states it is unapproved. While Genus contends that SEC statements and investor calls could support a false statement claim in an antitrust context, the court disagrees, stating those statements were not aimed at increasing Lannett's customer base. Additionally, there is a dispute regarding Genus's standing to bring a false advertising claim against Databank and whether such a claim must relate to the speaker’s own products or those of a competitor; however, the court does not address these issues since Genus has not sufficiently alleged that the price list constitutes commercial speech.