1. As we’ve reported, preemption arguments are all the rage these days among pharmaceutical company defendants seeking to avoid liability for deceptive advertising, patients’ injuries, and the like. The pharmaceutical industry, always ready to bemoan FDA regulation as excessive, has the temerity to come into court to argue that only the FDA can regulate it!
The Senate Judiciary Committee held a hearing this past Wednesday, on “Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?” You can watch a webcast of the hearing here, and view the witnesses’ testimony here.
2. Public Justice has recently published a new edition of its “Preemption Update,” tracking recent developments in federal preemption. Find it here.
The report details a number of recent federal and state Court decisions in which arguments that consumers’ claims that they were injured by drugs are NOT preempted. This might suggest that the Courts are scrutinizing such preemption claims more closely, and not relying on the FDA’s preemption preamble, in which the FDA argued that state “failure to warn” claims are preempted by the FDA’s authority over prescription drug labels.