Pharmaceuticals & Preemption

One of the big cases of this Supreme Court term will be argued tomorrow (Monday Nov. 3) -- Wyeth v. Levine, which presents the question:

Whether the prescription drug labeling judgments imposed on manufacturers by the
Food and Drug Administration ("FDA") pursuant to FDA's comprehensive safety and
efficacy authority . . . preempt state law product liability claims premised on the theory that
different labeling judgments were necessary to make drugs reasonably safe for use.

Besides the briefs for participants, the case has drawn in 30 amici, 8 for preemption and 22 against. All the briefs are available through the Scotus Wiki. For an analysis of the case from the pro-preemption side, see Drug and Device Law.

One amicus brief by a group of AEI-connected economists concludes:

Because FDA is faced with incentives that lead it to stake out overly cautious positions on drug approval and drug labeling, state tort litigation imposing additional requirements leads to a further departure away from the most socially beneficial outcome.

Given this background, it is clear that the public health would only be improved if state tort lawsuits like the one below were held preempted.