First Circuit Decision Strengthens Preemption Defense

For the first time since the Supreme Court’s decision in Wyeth v. Levine in 2009, a federal appellate court has dismissed state-level consumer protection claims against a large pharmaceutical company. The U.S. Court of Appeals for the First Circuit affirmed the dismissal in Marcus v. Forest Labs., Inc., concluding that the state-level claims were federally preempted by the Federal Food, Drug and Cosmetic Act (FDCA).

Joe Winebrenner and Nick Teichen, associates in Faegre BD’s product liability defense team, authored an article for the mass torts section of the American Bar Association newsletter on what this dismissal will mean for future consumer protection claims of this nature, as well as what impact the dismissal will have on state consumer protection laws.