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Drug Advertising Claims: Preemption\u27s New Frontier

By Catherine M. Sharkey


To date, the U.S. Supreme Court\u27s focus has been on preemption of traditional tort claims impugning the safety of medical devices and drugs either through design defect or failure-to-warn claims. Even if the Court forecloses such tort claims, in whole or in part, most likely the nascent, but ever-expanding, realm of related consumer fraud claims arising from prescription drug advertising will emerge unscathed. The historical model for an end run around preemption of failure-to-warn claims is provided by the watershed case Cipollone v. Liggett Group, which forged a distinction between health and safety specific failure-to-warn claims-which were expressly preempted under the federal cigarette labeling statute-and general fraudulent misrepresentation claims-which were not preempted. Altria Group, Inc. v. Good, decided this Term breathes new life into efforts to structure state law fraud claims around federal preemption. The crux of the preemption debate centers on whether the decision-maker adjudges the FDA\u27s regulation a floor (or minimal) or ceiling (or optimal) standard-the former permitting complementary state actions; the latter foreclosing them as meddlesome substitutes. The FDA\u27s advertisement review process appears to provide a (rather weak) floor rather than an optimal regulatory standard. On the whole, the FDA does not appear to be engaged in an exercise of optimization, weighing the costs and benefits of the DTCA. For this reason, it would be rare for pursuit of the state law tort action to be characterized as a \u22redo\u22 of what the FDA has already determined. And thus, consumer fraud claims arising from drug advertisements should withstand preemption challenges

Topics: Administrative Law, Practice and Procedure, Products Liability, Torts, Administrative Law, Litigation, Torts
Publisher: NELLCO Legal Scholarship Repository
Year: 2009
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