The Lanham Act: Another Vehicle to Enforce the Food, Drug, and Cosmetic Act?

Increasingly, plaintiffs have brought Lanham Act claims which arguably asserted private enforcement of the FDCA. In those cases, defendants commonly argue that a plaintiff cannot use the Lanham Act to enforce the FDCA. In the absence of any bright-line rule from the Supreme Court or statutory clarification from Congress, the issue of whether a plaintiff is privately enforcing the FDCA in a Lanham Act case is likely to be decided on a case-by-case basis.