List of off-label promotion pharmaceutical settlements
The following are settlements reached against pharmaceutical companies to resolve allegations of off-label promotion of drugs. Under the Federal Food, Drug, and Cosmetic Act, it is illegal for pharmaceutical companies to promote their products for uses not approved by the Food and Drug Administration (FDA), and corporations that market drugs for off-label indications may be subject to civil liability under the False Claims Act as well as criminal penalties.
Off-label promotion settlements under the False Claims Act
Descriptions of the lawsuits are listed in chronological order:
In 1996, whistleblower David Franklin left his position as a medical liaison with Parke-Davis, a pharmaceutical division of Warner-Lambert Company, after learning of the company's marketing strategy to promote the epilepsy drug Neurontin for uses not approved by the FDA and for which no evidence existed of the drug's effectiveness. Franklin and his attorney, Thomas M. Greene, filed a lawsuit, Franklin v. Parke-Davis, under the False Claims Act in federal district court in Boston. In the first off-label promotion case ever litigated in a whistleblower suit under the False Claims Act, the settlement was announced after eight years of litigation in May 2004. Warner-Lambert agreed to pay $430 million to resolve all civil and criminal liability, with $24.64 million going to Franklin for his participation in the lawsuit. To date, it is one of the largest recoveries against a pharmaceutical company in U.S. history.
Serono, a Swiss biotechnology company,obtained approval from the FDA for the drug Serostim in 1996 to treat AIDS wasting, a condition in which AIDS patients experience rapid weight loss. However, around the same time, the advent of more robust protease inhibitors that could interact in AIDS cocktails to markedly slow the advancement of the syndrome led to a decline in symptoms of AIDS wasting and, consequently, demand for Serostim. As a result, according to prosecutors, Serono devised a marketing scheme by which the definition of AIDS wasting would be changed to measure a loss in "body cell mass." The company then created a computerized medical test designed to detect loss of body cell mass and thereby diagnose AIDS wasting even in patients who had not experienced any weight loss. Serono ultimately agreed to pay $704 million to resolve all civil and criminal liability. Five whistleblowers, all former employees of Serono, initiated complaints under the False Claims Act, ultimately leading to the government's investigation. The whistleblowers shared in a $51 million reward from the settlement.
Schering-Plough pled guilty to one count of conspiracy to make false statements to the Medicaid program in connection with the pricing of its allergy drug Claritin. Allegations of off-label promotion, however, centered on the off-label promotionf of several cancer drugs. The drug Temodar, which was approved by the Food and Drug Administration (FDA) in 1999 for treatment of a specific type of brain tumor, was allegedly being promoted as a treatment for other types of brain cancer for which it had not been approved. Schering-Plough allegedly promoted Intron A, meanwhile, for use in superficial bladder cancer and hepatitis C. The case arose from claims filed under the False Claims Act; the company was forced to pay a $180 million criminal fine and an additional $255 million to settle all civil claims.
4. InterMune, Inc.; Off-label promotion of Actimmune; October 2006
In 2007, InterMune abandoned all efforts to develop the drug Actimmune, which goes by the generic name of Interferon-gamma, as a treatment for idiopathic pulmonary fibrosis (IPF), a chronic lung condition, after experimental trials showed the drug was ineffective at treating the disease. The decision was announced after the company agreed to pay $36.9 million to resolve criminal charges and civil liability in connection with InterMune's off-label promotion of the drug, which had only been approved by the FDA to treat chronic granulomatous disease and severe malignant osteopetrosis, both extremely rare illnesses which would have generated sales of only $20 million a year. Sales of the drug to treat IPF, however, soared as high as $141 million in the year 2003. InterMune's yearly sales were entirely from Actimmune.
5. Cell Therapeutics; Off-label promotion of Trisenox; April 2007
In a qui tam suit filed under the False Claims Act by whistleblower James Marchese, Cell Therapeutics agreed to settle claims for $10.5 million that it illegally promoted the cancer drug Trisenox. Trisenox won approval by the FDA in 2000 to treat a relatively rare form of leukemia known as acute promyelocytic leukemia, but the manufacturer promoted Trisenox as effective treatment for other cancers for which the drug was not approved.
This settlement of $9.8 million resolved allegations that Medicis Pharma promoted Loprox, a topical skin preparation, for use on children under the age of 10 despite the fact that use in children under 10 had not been approved by the FDA. According to the government and the whistleblower complaint filed by four former Medicis sales representatives under the False Claims Act, pediatricians were urged to prescribe Loprox as a treatment for diaper rash. The four relators shared a $1,078,000 reward for providing information in the lawsuit.
7. Orphan Medical, Jazz Pharmaceuticals; Off-label promotion of Xyrem; July 2007
Orphan Medical, a subsidiary of Jazz Pharmaceuticals, pleaded guilty to felony misbranding under the FDCA and agreed to pay $20 million to resolve all civil claims and criminal charges in connection with Xyrem, a drug approved by the FDA for narcolepsy and the street version of which is classified by the Drug Enforcement Administration as a Schedule I drug. Although the drug's distribution as a narcolepsy medication is strictly regulated, the complaint filed under the False Claims Act alleged that the company promoted the drug as a treatment for depression, insomnia, and fibromyalgia.
In a settlement totaling $515 million to settle a host of civil charges and civil liabilities related to alleged illegal pricing and marketing practices for several of its drugs, Bristol-Myers Squibb paid out approximately $50 million to settle seven qui tam suits filed under the False Claims Act. Specifically, the company engaged in off-label promotion of Abilify, an antipsychotic drug approved by the FDA to treat adult schizophrenia and bi-polar disorder. The government alleged that Bristol promoted the drug for pediatric use and to treat dementia, both of which are off-label uses.
Cephalon, a Pennsylvania-based drug company, paid out $425 million, $50 million of which was paid to resolve a criminal indictment for violations of the FDCA, and $375 million to dispose of claims brought under the False Claims Act. Four Qui tam relators who filed suits collectively recovered $46,469,978 as their share. The FDA approved Actiq, a fentanyl product manufactured as a lollipop, for use in cancer patients for whom morphine-based painkillers are no longer effective. According to the government, Cephalon promoted Actiq for use in non-cancer patients to treat such conditions as migraines, sickle-cell pain crises, and other injuries. Gabitril, meanwhile, received FDA approval as a treatment for partial seizures, but the manufacturer allegedly marketed the drug for anxiety, insomnia, and pain. Provigil was initially approved to treat excessive daytime sleepiness resulting from narcolepsy, and later approved the drug for further label indications. Cephalon allegedly promoted Provigil for a five-year period as a non-stimulant drug for the treatment of sleepiness, tiredness, decreased activity, lack of energy, and fatigue.
After four whistleblowers initially filed suits under the False Claims Act, prompting a government investigation, Eli Lilly and Company agreed to plead guilty and pay $1.415 billion for promoting its drug Zyprexa for uses not approved by the FDA. Specifically, the private whistleblower complaints and the government alleged that Eli Lilly engaged in a marketing scheme over a period of several years to promote the drug's use in children and the elderly, groups particularly vulnerable to the product's side effects. An antipsychotic drug initially approved in 2000 to treat manifestations of certain psychotic disorders, the government's indictment contended that Eli Lilly deliberately marketed the drug to treat agitation, aggression, hostility, dementia, Alzheimer’s dementia, depression and generalized sleep disorder, none of which were uses approved by the FDA.
In what was the largest pharmaceutical settlements in U.S. history at the time, Pfizer reached a $2.3 billion settlement with the Department of Justice to resolve criminal charges and civil claims under the False Claims Act. The pharmaceutical giant was accused of off-label promotion of the anti-inflammatory drug Bextra; Geodon, an anti-psychotic drug; Zyvox, an antibiotic; and Lyrica, an anti-epileptic drug. The drugs were allegedly promoted for uses not approved by the FDA, and therefore the company's marketing caused non-reimbursable prescriptions to be paid by Medicare and Medicaid (Medicare and Medicaid do not reimburse for off-label drug prescriptions). Six whistleblowers shared a $102 million reward under the False Claims Act.
After a government investigation precipitated by a whistleblower suit filed by Debra Parks under the False Claims Act in 2006, Alpharma agreed to a $42.5 million settlement to resolve all civil and criminal liability in connection with the company's alleged off-label marketing of Kadian. According to the government, the company promoted Kadian, a morphine-based drug, for uses unapproved by the FDA. In addition,the company made misrepresentations about the safety and efficacy of the drug.
A qui tam suit filed under the False Claims Act led to a massive $520 million to resolve all civil and criminal liability with respect to illegal promotion of the anti-psychotic drug Seroquel. Approved by the FDA in 1997 to treat manifestations of psychotic disorders, in 2000 the FDA subsequently approved Seroquel for short-term treatment of schizophrenia, bipolar disorder, and bipolar depression. Between January 2001 through December 2006, AstraZeneca promoted Seroquel to psychiatrists and other physicians for certain uses that were not approved by the FDA, including aggression, Alzheimer’s disease, anger management, anxiety, attention deficit hyperactivity disorder, bipolar maintenance, dementia, depression, mood disorder, post-traumatic stress disorder, and sleeplessness. Federal health programs do not reimburse for prescriptions prescribed for indications not approved by the FDA.
Two subsidiaries of Johnson & Johnson, Ortho-McNeil Pharmaceutical LLC and Ortho-McNeil-Janssen Pharmaceuticals Inc. agreed to pay more than $81 million to settle all civil and criminal liability as a result of the companies’ illegal marketing of Topamax, an anti-epileptic drug. As part of the settlement, Ortho-McNeil agreed to plead guilty to one count of a misdemeanor violation of the Food, Drug, and Cosmetic Act. The criminal fine amounted to $6.1 million, and the government recovered $75 million in damages under the False Claims Act. The whisteblowers who filed suit under the False Claims Act stood to recover, collectively, more than $9 million.
Novartis Vaccines & Diagnostics Inc. and Novartis Pharmaceuticals Corporation agreed to pay $72.5 million to settle claims brought under the False Claims Act alleging off-label promotion of the cystic fibrosis drug TOBI between 2001 and 2006.
Allergan, the manufacturer of Botox, agreed to a $600 million settlement to resolve all civil and criminal liability surrounding the promotion of Botox for treatment of chronic migraines before FDA review or approval of the drug for such use.
17. Novartis; Off-label promotion of Trileptal; September 2010
Settlement agreement of $422.5 million, including a $185 million criminal fine and forfeiture for the off-label promotion of the anti-epilepsy drug Trileptal. Trileptal was approved by the FDA to treat partial seizures, but was allegedly promoted to treat pain and some psychiatric conditions. The government also accused Novartis of paying illegal kickbacks to healthcare providers.
Settlement of more than $313 million to resolve all criminal and civil liability related to three different drugs. Forest Laboratories pleaded guilty to obstruction of justice and illegal distribution of Levothroid, which at the time was an unapproved new drug. The settlement also resolved allegations of off-label marketing of Celexa, an antidepressant approved to treat adult depression. According to the government, Forest marketed Celexa for use in children and adolescents.
Irish pharmaceutical company Élan Corporation PLC and its U.S. subsidiary agreed to pay $203 million to resolve allegations that the company engaged in off-label promotion of the anti-epilepsy drug Zonegran. Eisai Inc., a Japanese drug marketer that purchased the drug from Élan, agreed to pay $11 million. The settlement resolved claims of illegal promotion under the Food, Drug, and Cosmetic Act as well as civil claims filed under the False Claims Act.
Kos Pharmaceuticals, a subsidiary of Abbott Laboratories, agreed to a settlement of more than $41 million to dispose of all civil and criminal liability resulting from the company’s off-label promotion and illegal payment of kickbacks in the marketing of Advicor and Niaspan. The Department of Justice entered into a deferred prosecution agreement with Kos based on actions taken by the company to conduct internal investigations and its ongoing cooperation with the government.
The U.S. subsidiary of UCB, a Belgian pharmaceutical company, agreed to pay more than $34 million as part of a settlement agreement to resolve all criminal and civil liability arising from its alleged off-label promotion of the epilepsy drug Keppra. UCB was alleged to have promoted the drug for the treatment of migraine headaches, a used for which Keppra had not received FDA approval.
22. Novo Nordisk; Off-label promotion of NovoSeven; June 2011
Novo Nordisk, a Danish drug manufacturer, agreed to a $25 million settlement to resolve allegations of illegal promotion of the drug NovoSeven, approved by the FDA to treat certain bleeding disorders in hemophiliacs. The government’s complaint alleged numerous off-label uses for which the company promoted the drug, including as a coagulatory agent for trauma patients, general surgery, cardiac surgery, liver surgery, liver transplants and intra-cerebral hemorrhage.
23. Pfizer; Off-label promotion of Detrol; October 2011
As was the case in the 2004 Pfizer settlement over off-label promotion of Neurontin, in 2011 Pfizer agreed to a settlement as a result of a whistleblower complaint filed under the False Claims Act without intervention by the Department of Justice. The $14.5 million settlement arose from a complaint which alleged that Pfizer was engaging in the illegal promotion of Detrol, a drug approved by the FDA to treat urinary incontinence, for off-label uses.
- Melody Petersen, Our Daily Meds: How the Pharmaceutical Companies Transformed Themselves into Slick Marketing Machines and Hooked the Nation on Prescription Drugs (2008)
- "WARNER-LAMBERT TO PAY $430 MILLION TO RESOLVE CRIMINAL & CIVIL HEALTH CARE LIABILITY RELATING TO OFF-LABEL PROMOTION". United States Department of Justice. 13 May 2004. Retrieved 25 July 2012.
- Lichtblau, Eric (18 October 2005). "Settlement in Marketing of a Drug for AIDS". The New York Times. Retrieved 25 July 2012.
- "SERONO TO PAY $704 MILLION FOR THE ILLEGAL MARKETING OF AIDS DRUG". justice.gov. 17 October 2005. Retrieved 25 July 2012.
- Krasner, Jeffrey (30 August 2006). "Schering-Plough pleads guilty to conspiracy". The New York Times. Retrieved 25 July 2012.
- "SCHERING TO PAY $435 MILLION FOR THE IMPROPER MARKETING OF DRUGS AND MEDICAID FRAUD". justice.gov. 29 August 2006. Retrieved 25 July 2012.
- Pollack, Andrew (6 March 2007). "Drug Maker Stops Work on Lung Disease Medicine". The New York Times. Retrieved 25 July 2012.
- "Biopharmaceutical Firm Intermune to Pay U.S. Over $36 Million for Illegal Promotion and Marketing of Drug Actimmune". justice.gov. 26 October 2006. Retrieved 25 July 2012.
- Meier, Barry (25 October 2007). "Whistle-Blower Finds a Finger Pointing Back". The New York Times. Retrieved 25 July 2012.
- "Medicis Pharmaceutical To Pay U.S. $9.8 Million to Resolve False Claims Allegations". justice.gov. 8 May 2007. Retrieved 25 July 2012.
- Berenson, Alex (14 July 2007). "Maker of Narcolepsy Drug Pleads Guilty in U.S. Case". The New York Times. Retrieved 25 July 2012.
- "Bristol-Myers Squibb to Pay More Than $515 Million to Resolve Allegations of Illegal Drug Marketing and Pricing". justice.gov. 28 September 2007. Retrieved 25 July 2012.
- Wilson, Duff (3 October 2010). "Side Effects May Include Lawsuits". The New York Times. Retrieved 25 July 2012.
- "PHARMACEUTICAL COMPANY CEPHALON TO PAY $425 MILLION FOR OFF-LABEL DRUG MARKETING". justice.gov. 29 September 2008. Retrieved 25 July 2012.
- "Eli Lilly and Company Agrees to Pay $1.415 Billion to Resolve Allegations of Off-label Promotion of Zyprexa". justice.gov. 15 January 2009. Retrieved 25 July 2012.
- Gardiner Harris, Alex Berenson (2009-01-15). "Settlement Called Near On Zyprexa - NYTimes.com". New York Times. Retrieved 2012-07-25.
- Harris, Gardiner (2 September 2009). "Pfizer Pays $2.3 Billion to Settle Marketing Case". The New York Times. Retrieved 25 July 2012.
- "Justice Department Announces Largest Health Care Fraud Settlement in Its History". justice.gov. 2 September 2009. Retrieved 25 July 2012.
- "Alpharma to Pay $42.5 Million to Resolve False Claims Act Allegations in Connection with Promotion of Drug Kadian". justice.gov. 16 March 2010. Retrieved 25 July 2012.
- Edwards, Jim (2010-03-17). "The Alpharma Morphine Painkiller Probe Ain't Over: "Unnamed Defendant" Still Twists in the Wind". CBS News. Retrieved 2012-07-25.
- "Pharmaceutical Giant AstraZeneca to Pay $520 Million for Off-label Drug Marketing". justice.gov. 27 April 2010. Retrieved 25 July 2012.
- "Two Johnson & Johnson Subsidiaries to Pay Over $81 Million to Resolve Allegations of Off-Label Promotion of Topamax". justice.gov. 29 April 2010. Retrieved 25 July 2012.
- Associated Press (29 April 2010). "Drug Makers to Pay Fine of $81 Million". The New York Times. Retrieved 25 July 2012.
- "Novartis Vaccines & Diagnostics to Pay More Than $72 Million to Resolve False Claims Act Allegations Concerning TOBI". justice.gov. 4 May 2010. Retrieved 25 July 2012.
- "Allergan Agrees to Plead Guilty and Pay $600 Million to Resolve Allegations of Off-Label Promotion of Botox®". justice.gov. 1 September 2010. Retrieved 25 July 2012.
- Singer, Natasha (1 September 2010). "Maker of Botox Settles Inquiry". The New York Times. Retrieved 25 July 2012.
- "Novartis Pharmaceuticals Corp. to Pay More Than $420 Million to Resolve Off-label Promotion and Kickback Allegations". justice.gov. 30 September 2010. Retrieved 25 July 2012.
- Wilson, Duff (30 September 2010). "Novartis Pays $422.5 Million in Settlement". The New York Times. Retrieved 25 July 2012.
- "Drug Maker Forest Pleads Guilty; To Pay More Than $313 Million to Resolve Criminal Charges and False Claims Act Allegations". justice.gov. 15 September 2010. Retrieved 25 July 2012.
- Singer, Natasha (15 September 2010). "Forest, Maker of Celexa, to Pay More Than $313 Million to Settle Marketing Case". The New York Times. Retrieved 25 July 2012.
- "Pharmaceutical Companies to Pay $214.5 Million to Resolve Allegations of Off-label Promotion of Zonegran". justice.gov. 15 December 2010. Retrieved 25 July 2012.
- "Kos Pharmaceuticals to Pay More Than $41 Million to Resolve Kickback and Off-Label Promotion Allegations". justice.gov. 7 December 2010. Retrieved 25 July 2012.
- "U.S. Subsidiary of Belgian Pharmaceutical Manufacturer Pleads Guilty to Off-Label Promotion; Company to Pay More Than $34 Million". justice.gov. 9 June 2011. Retrieved 25 July 2012.
- "DANISH PHARMACEUTICAL NOVO NORDISK TO PAY $25 MILLION TO RESOLVE ALLEGATIONS OF OFF-LABEL PROMOTION OF NOVOSEVEN". justice.gov. 10 June 2011. Retrieved 25 July 2012.
- "Detrol Settlement of $14.5 Million Adds to List of Off-Label Cases Under False Claims Act". falseclaimsactattorney.com. 20 October 2011. Retrieved 25 July 2012.