Neither Reason nor Science Supports Class Actions against Diet Soda Makers

 

A Food Court Follies Analysis

No doubt, many a diet soda will be consumed this weekend. Will any of those consumers, though, purchase that soda—in reliance on the manufacturers’ devious use of “diet”—because they think it will assist in weight loss?

diet pepsiThat impression is the basis of a number of copycat consumer class-action lawsuits filed in New York and California by the same lawyers on behalf of soda purchasers against Coca-Cola, PepsiCo, and Dr. Pepper Snapple Group. Four such suits have been dismissed, the most recent being Manuel v. Pepsi-Cola Co. in an pointedly written opinion by U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer. Continue reading “Neither Reason nor Science Supports Class Actions against Diet Soda Makers”

Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability”

pillsIn a recent post, West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”, WLF Senior Litigation Counsel Cory Andrews discussed a state court decision that declined liability on a pharmaceutical manufacturer for alleged harms caused by a drug it did not produce. In doing so, the West Virginia Supreme Court of Appeals parted company with the highest courts of two other states, California and Massachusetts, which earlier this year embraced the minority view that plaintiffs can recover damages from so-called branded pharmaceutical companies for harms allegedly caused by the generic copy of the the brand-name drug.

On May 21, a U.S. District Court for the District of Massachusetts judge overseeing a multidistrict litigation, In re: Zofran (Ondansetron) Products Liability Litigation, followed the majority view of innovator liability and dismissed three claims filed by plaintiffs who had only ingested the generic version of Zofran. Continue reading “Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability””

West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”

west vaShould the law recognize a plaintiff’s tort claims against a branded drug manufacturer when the drug that allegedly caused the plaintiff’s injuries was manufactured and sold by the defendant’s generic competitor? State and federal courts have been grappling with this novel question of “innovator liability” ever since the U.S. Supreme Court held, in Pliva and Bartlett, that such tort claims against generic manufacturers are preempted under federal law.

At bottom, innovator liability seeks to hold innovator drug manufacturers liable for injuries resulting from products they neither manufactured nor sold. Such “deep pocket jurisprudence,” as a recent Washington Legal Foundation paper by Shook Hardy & Bacon’s Victor Schwartz explains, marks a radical departure from long-settled principles of product liability premised on a naked policy decision that shifts financial responsibility onto a third party with the deepest pockets. Continue reading “West Virginia’s High Court Rejects Novel Theory of “Innovator Liability””

FTC Enforcement Powers Face Serious Challenge

FTC_Man_Controlling_TradeThe Federal Trade Commission (FTC) has long asserted broad authority to sue businesses for engaging in unfair or deceptive acts or practices.  But a recent federal court decision (Federal Trade Commission v. Shrire Viropharma Inc.) calls that authority into serious question.  If upheld on appeal, the decision could lead to major changes in the way FTC carries out its enforcement responsibilities.

The decision focused on § 13(b) of the Federal Trade Commission Act (FTCA).  That statute authorizes FTC to seek injunctive relief in federal court against anyone who “is violating, or is about to violate” a law enforced by FTC.  FTC has long contended that § 13(b) also authorizes actions against entities based on past violations, even in the absence of evidence that the entity “is about to” commit new violations.  A Delaware federal district judge’s rejection of that contention has thrown a monkey wrench into FTC’s enforcement apparatus. Continue reading “FTC Enforcement Powers Face Serious Challenge”

No Matter the Cause, “Public Interest” Groups Merit No Shortcuts on Standing to Sue

DC District CourtTo bring a lawsuit, a plaintiff must, before all else, demonstrate standing under the Constitution. Article III requires a plaintiff have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan and other U.S. Supreme Court decisions have clarified that cause-oriented organizations get no shortcuts; they must meet roughly the same standing requirements as individuals to bring lawsuits in federal court. A recent U.S. District Court for the District of Columbia decision, Environmental Working Group et al. v. Food and Drug Administration, exactingly applied those requirements to deny two environmental groups standing to sue, while at the same time signaling that D.C. Circuit organizational standing precedents should perhaps be reconsidered. Continue reading “No Matter the Cause, “Public Interest” Groups Merit No Shortcuts on Standing to Sue”

Update: FDA’s Amicus Views Prevail in Third Circuit Medical-Device Preemption Case

FDALate last year we highlighted steps the Food and Drug Administration (FDA) made in 2017 to reestablish its authority as uniform regulator of drugs and medical devices.  That role, we explained, was in danger due to the ever-increasing list of state tort and consumer-protection lawsuits brought by plaintiffs’ attorneys on behalf of private litigants.  In the post, we examined three instances where FDA independently stepped in to ongoing litigation to advance arguments supportive of regulatory uniformity.

In one instance, FDA submitted an amicus brief to the Third Circuit in a case where the plaintiff alleged that the manufacturer of his artificial hip promoted the device illegally.  In its brief, FDA emphasized that the Food, Drug & Cosmetic Act (FDCA) expressly preempted state-law claims that would impose “different or additional requirements on approved devices.”  Because each of the plaintiffs’ claims challenged the safety and effectiveness of an approved device, FDA argued that any state-law claim would “impose additional requirements” and was thus preempted by the FDCA.

In its March 1, 2018 opinion in Shuker v. Smith & Nephew, PLC, the Third Circuit agreed with FDA.  Holding that the plaintiffs’ claims “would impose non-parallel state law requirements,” the appellate court found the state-law claims preempted.

The Third Circuit’s decision is just another example of the importance of FDA’s role as uniform regulator.  Hopefully FDA’s current leadership will continue to lead the way in ensuring the consistency that all consumers expect when making choices about their medical products.

Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons

first-amendmentAs the country debates the best path forward for the nation’s healthcare system, interest groups continue to advance different ideas to address their pet causes.  One popular cause is the reduction of drug prices.  Though that debate often occurs based on narrow perceptions of the dollar figures at issue, ideas for price reduction are worthy of consideration, especially given the increasing budgetary percentage that government and personal spending healthcare now occupies.  One drug-price-reduction idea advanced toward the end of last year, however, should be vigorously opposed. Continue reading “Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons”