Sterling Drug Inc

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IN THE MATTER OF STERLING DRUG INC., ET AL.

Docket 8919. Interlocutory Order, Sept. 1.'1, 1977 Denial of respondent Sterling Drug Inc. motion to dismiss portions of complaint concerning the product Cope, and affrmance of ALJ's ruling denying respondent s motion for partial summary decision. ORDER Respondent Sterling Drug Inc. respondent") (1) applies for interlocutory review of the administrative law judge s denial of its motion for summary decision with respect to the portions of the complaint concerning the product Cope; and (2) moves for dismissal of these portions of the complaint on the ground that further proceedings would not be in the public interest. The administrative law judge, by order dated June 7, 1977, authorized respondent to apply for interlocutory review of his denial of the summary decision motion 1 and certified to the Commission the motion to dismiss. Respondent argues that Cope is a minor product with a "miniscule" share of the analgesic market, that advertising of the product terminated more than five years ago and that there is "no possibility the alleged violations will be repeated and, hence no basis for any relief, no matter what the outcome of a trial.'" Respondent relies on an affidavit prepared by Mr. James Alberts, a company offcial asserting that Cope advertising has been terminated and that Sterling has no plans to advertise Cope in the foreseeable future and there is no reasonable expectation or possibility of any such advertising because of the same objective economic factors that led to termination more than five years ago." 4 Sterling also cites a recent announcement that the Food and Drug Administration has commenced an action that may lead to removal from the market of all daytime sedatives, including Cope, that are sold over-the-counter without prescriptions. 5 Respondent contends that the summary decision motion should , Rules ofPmcticc, Section 3.23(b) , RuJesofPracticc Section3.22(a) , Motion of Sterling Drug Inc. to Dismiss Issues Related to the Produd Cope on Public Interest Grounds; lind Application for Interlocutory Appeal from the Denial of Respondent' s Molion for Summary Decision 1 . The affidavit accompanies respondent' s motion for summary decision, , Supplementa! Memorandum, June 24 , 1977, We hereby grant respondent leave to fie this memorandum andcomplaintcounselleavetofiletheirreply, An FDA advisory panel had found insuffcient evidence to support a label claim that One of Cope s primary ingredients is safe and effedive for daytime tension relief and allowed three years for the submission of adequate substantiation for tension relief ch,ims, Respondent has also cited this action as supporting dismissal of the complaint Interlocutory Order 90 F. have been granted because its discontinuance of advertising of Cope rendered the portions of the complaint concerning the product moot as a matter of law. The motion to dismiss asserts that further proceedings with regard to this product are, in any event, not in the public interest.

We affirm the AU' s denial of respondent's summary decision motion. The law judge reasonably found that the affdavit offered by respondent did not contain an unqualified assurance that advertising for Cope would not be resumed under appropriate market conditions.' As for the recently announced FDA proceeding, the FDA indicated its intention to begin a "lengthy" process expected to result in the removal from the market of daytime sedatives such as Cope. The eventual outcome and its timing are, of course, uncertain. Even if there was no possibility that respondent would resume its advertising of Cope, we would not be prevented on the ground of mootness from prohibiting closely related violations in the future. Rubbermaid, Inc.. 87 F. C. 676, 707 (1976), appeal pending. No. 76- 1830 (6th Cir.). Violations found with regard to the product Cope might well justify order prohibitions against reasonably related practices respecting other Sterling products. We conclude for the same reasons that the public interest would not be served by the granting of respondent' s motion to dismiss. Respondent' s motion to dismiss is accordingly denied and the administrative law judge s' ruling denying respondent' s motion for partial summary decision is affirmed.

It is so ordered.

" We do not mean to suggest that we would necessarily be bound by lon unqualified assurance.FeddersSee Corp., 85 F.TC a8 (1975),affd. . 529 t' 2d 1398 (1976). cer/. denied, 429 U.s, 818. 45 U.S, L.W. 3249 (Oct 1976) , We do not reach complaint counsel' s arguments about the relevance ofcluims that continue to be disseminated on Cope labels . See FTv- Ruhemid Co., 343 U.S. 470, 473 (1952) Whether evidence concerning Cope might support order provisions that proof r.onr.erning other Sterling producl might not support would depend on the nature and rel"tive strengths of the evidenr.e conr.erning the various products 177 Complaint