Share this article:

Polsinelli - Labor and Employment Government Investigations and Compliance - Civil and Criminal


February 2015


Arizona Applies Consumer Fraud Act to Pharmaceutical Manufacturers







For more information about this alert, please contact:


Edward F. Novak


Practice Area Chair


Email | Bio


Additional Government Investigations and Compliance Practice Leadership:


Jonathan N. Rosen

Practice Area Vice Chair


Email | Bio


To view a full list of our Government Investigations and Compliance professionals, click here.


For current Intelligence or to learn more about our Government Investigations and Compliance practice, click here.


View Polsinelli documents on JD Supra  


LinkedIn Twitter Facebook Inside Law Podcast Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook. Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook.



Arizona has joined two other states in applying its consumer fraud law to pharmaceutical manufacturers. The Arizona Court of Appeals decision came in a products liability action against Medicis Corporation, related to a prescription acne medication. The Court said that the term "merchandise" in the consumer fraud act covers "medication" just as it would any other "tangible good available for purchase in the marketplace." The consumer fraud act requires a false promise or representation in the sale or advertisement of merchandise. A private cause of action requires reliance on the misrepresentation. A cause of action by the State does not require reliance.

Previously, pharmaceutical companies were only liable for warning doctors about potential side effects from medications, under the assumption that the doctors would in turn educate patients. In recent years however, there has been an explosive increase in pharmaceutical companies marketing directly to the public via television ads or other means. Patients now regularly go to their doctor asking to be prescribed a specific drug, and Arizona courts have responded by raising the bar on manufacturers' responsibility to disclose side effects directly to patients.

Arizona joins two other states in tightening pharmaceutical manufacturer liability. Illinois and Minnesota appear to permit consumer fraud actions against pharmaceutical companies under certain circumstances. Other states do not permit such actions, but may permit a claim to be brought under a different state statute or common law theory, like product liability.

The danger for pharmaceutical companies lies with enforcement by the State of Arizona, as penalties of up to $10,000 per violation may apply. The State has other remedies as well, including injunctive relief. Arizona's Attorney General's Office has been an aggressive enforcer of consumer fraud violations in the past. Polsinelli's Government Investigations practice will continue to monitor case law in this area and inform you of ongoing developments, as other states may join Arizona, Illinois and Minnesota in modifying their consumer fraud laws.

For More Information

If you have questions about this alert, please contact:











Atlanta  Chattanooga  Chicago  Dallas  Denver  Edwardsville  Jefferson City  Kansas City  Los Angeles  New York
Overland Park  Phoenix  St. Joseph  St. Louis  San Francisco  Springfield  Topeka  Washington, D.C.  Wilmington








real challenges. real answers.SM  
Polsinelli is a first generation Am Law 100 firm serving corporations, institutions, entrepreneurs and individuals nationally. Our attorneys successfully build enduring client relationships by providing practical legal counsel infused with business insight, and with a passion for assisting General Counsel and CEOs in achieving their objectives. Polsinelli is ranked 18th in number of U.S. partners* and has more than 740 attorneys in 19 offices. Profiled by The American Lawyer and ranked as the fastest growing U.S. law firm over a six-year period**, the firm focuses on health care, financial services, real estate, life sciences and technology, energy and business litigation, and has depth of experience in 100 service areas and 70 industries. The firm can be found online at Polsinelli PC. In California, Polsinelli LLP.

* Law360, March 2014
** The American Lawyer 2013 and 2014 reports







Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Copyright © 2015 Polsinelli PC.

Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook. Polsinelli Government Investigations Polsinelli Government Investigations