Drug Companies Petition Supreme Court to Hear Case Challenging Eye Drop Size

April 6, 2018: By Jon Swedien

Alcon, Allergan, and Bausch + Lomb are among the companies that have petitioned the US Supreme Court to hear a case challenging the size of eye drops.

The petition comes in the wake of conflicting federal appeals court decisions in similar cases brought by patients who use glaucoma medications. Plaintiffs in both cases argued that the drugmakers should sell bottles that dispense smaller drops, which would waste less product and save consumers money.

One of the appeals court decisions (Cottrell v. Alcon) sided with plaintiff. In the other case (Eike v. Allergan)—with similar allegations—the court found in favor of the companies. The companies petitioned the high court to hear Cottrell v. Alcon.

In Cottrell v. Alcon, the plaintiffs pointed to studies sponsored and published by the defendants that found eye drops should be 5 to 15 μLs in order to maximize the amount of the medication entering the inner eye. The plaintiffs went on to note that the size of the defendants’ eye drops was more than two- to three times the maximum recommended size in the studies, and as such, led to wasted product.

In their petition, the companies defended their products’ packaging, noting it is FDA approved. They also argued that smaller drops, for numerous reasons, would not necessarily result in lower prices—and that the cost of changing the drop size could actually be passed onto consumers.

“Whether petitioners would be able to offer smaller drops (and, if so, at what price) is itself significantly affected by FDA and its approval process and post-approval requirements,” the petition said.

The Supreme Court hears just a small fraction of the cases it is asked to take up each year, but it does tend to favor cases where circuit courts have made conflicting rulings.

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