Thompson Medical Company, Inc

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IN THE MATTER OF THOMPSON MEDICAL COMPANY, INC_, ET AL Docket 91-4.9. Interlocutory Order, April 22, 1981 ORDER DENYING MOTION OF RESPONDENT THOMPSON MEDICAL COMPANY, INC. TO RECONSIDER COMPLAINT The administrative law judge has certified to the Commission a motion filed by respondent Thompson Medical Company, Inc- to reconsider the complaint issued by the Commission in this proceeding_ ' In support of its motion, respondent argues that the Food and Drug Administration (FDA) has the responsibility to determine drug efficacy, and that the FDA-appointed panel on topical analgesics wil review the evidence on the efficacy of Aspercreme s active ingredient TEA")- Respondent contends that it is consequently not in the public interest for the FTC to conduct the above-captioned proceeding. For the reasons stated below, the Commission disagrees. The Commission has authority under Sections 5 and 12 of the FTC Act, 15 UB_C- 45 and 52 , to challenge, inter alia. advertising claims which it has reason to believe are false or deceptive- While the statutory authority of the FDA and FTC overlap to some degree under the Liaison Agreement between the two agencies there is in fact no duplication of function because the Commission exercises primary jurisdiction over nonprescription drug advertising and the FDA exercises primary jurisdiction over drug labeling- 36 Fed- Reg. 18539 (1971), 3 Trade Reg- Rep- (CCH) 9851 at 17 678_' Thus, while any relevant findings to emerge from FDA's OTC drug reviewconcerning, the performance of "TEA" can of course be given appropriate consideration by the ALJ and the Commission if made part of the record of the present proceeding, the Commission responsibility to police allegedly false or deceptive OTC drug advertising is in no way diminished during the pendency of the , The motion is captioned "Motion to Reconsider Complaint," Elsewhere in its fiing, respondent frames its motion as a request "that the Commission withdraw those portions of the complaint which challenges the effcacy of Aspercremc as a topical analgesic ..... (Motion "t 2), and as a request that "the Commission amend its complaint to remove the allegations challenging the advp.rtising claims regarding the effkacy, and mode of action of the product Aspp.Tcrcmc" (Motion at 5). This Ordet constit,ldes a denial of the requested relief in all its forms.

, Moreover, the Supreme Court has long held that the same issues and parties may be proceeded against imultaneously by more than one agency. See (;., FTC v. Cemenlln. tilule, 333 U.S, 683 (1948). See also Wamer- Lambert v. FT. 361 ' Supp. 948, 952 (D.ne. 1973), in which the court applied this principle in disposing of precisely the same argument that respondent has presented here . g., hlterlocutory Order - 97 F_ FDA' s extensive process- See Warner-Lambert Co- v- FTC, 361 F- Supp- 948 (D_ C- 1973)_ Respondent also argues that the Commission has unfairly "singled it out" and placed it at a disadvantage relative to other marketers of TEA-based products- As the complaint is based on advertising claims allegedly made by this respondent, however, it is appropriately focused solely on this respondent (along with the advertising agency respondent)_ ' Accordingly, It is ordered, That the aforesaid motion be, and it hereby is, denied- , See also, Commis ion Response to Morton. Norwich' s Motion to Quash Subpoena Duces Tecum, i!e No 7!J2:!22H (May 14, 1980): Order of the Commission Denying Respondent American Home Products' Motion to Oismis1; th" Complaint or in the Alternative Suspend Proceeding, Docket Nu K!JI8 (May :J1 , 1977) . In any event, it is well settled that the Commission m"y exercise its discretion tu proceed against one company without taking action against similarly .situated competitors.FTC Universal Rundle Corp..387 U.s, 244 (1967); MO(lg Indu.stries. Inc. Y. FTC. :J;,;; U,S. 411 OB.'!!) TEXORA INTERNATIONAL CORP_. ET AL- 351 351 Modifying Order