federal preemption

James Beck, a defense lawyer with Reed Smith, blogged on Friday about the first time that an appellate court has held that a claim that a brand-name manufacturer were negligent in the design of its drugs has been preempted because it would be impossible for the drug company to comply both with federal regulations and state tort law.

It's the first appellate authority to recognize impossibility preemption of a design defect case against a brand-name manufacturer since the U.S. Supreme Court issud its ruling in Mutual Pharmaceutical Co. v. Bartlett two years ago, Beck says.

The U.S. Court of Appeals for the Sixth Circuit ruled that it would have been impossible for Ortho-McNeil-Janssen Pharmaceuticals to come up with an alternative design for one of its birth control patches either before it was approved by the Food and Drug Administration or after it was approved. The appeals court also rejected the argument that Ortho could have complied with state tort law by never starting to sell its birth control patch.

The Sixth Circuit has ruled that state-law tort claims against generic drugmakers are federally pre-empted, according to Squire Sanders' Sixth Circuit blog. The Sixth Circuit majority cited Supreme Court precedent: PLIVA, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett.  The majority also "reads those cases as broadly holding that state law failure-to-warn claims based on generic drugs are preempted by the FDA’s requirement that the labels on generic drugs conform to the labels on the brand-name drugs," according to the blog.

The Illinois Supreme Court has become the first court in the country to find a federal law preempts a state law requiring sales taxes be paid on Internet sales, USA Today reports. The paper also reports: "the court determined that Illinois' 2011 'Main Street Fairness Act' was superseded by the federal law, which prohibits imposing a tax on 'electronic commerce' and obligates collection that's not required of transactions by other means, such as print or television." The issue might be primed for the U.S. Supreme Court as New York upheld its Internet sales tax-law and Amazon is appealing.

While the U.S. Supreme Court has ruled FDA approval of medical devices preempts tort lawsuits over medical-device injuries, plaintiff "Arizonan Richard Stengel says federal law regulating medical devices does not trump his claims under state law because Medtronic Inc failed to alert the U.S. Food and Drug Administration to known risks associated with the pain medication pump and catheter that was implanted in his abdomen," Reuters reports. The high court has asked for input from President Obama's administration before making a decision on granting certiorari on hearing the appeal.