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Professor Richard Epstein, of The University of Chicago Law School, has this article about Wyeth v. Levine in this week’s issue of Forbes.
Professor Epstein favors preemption, but he thinks that Wyeth’s position does not go far enough: Wyeth seeks preemption only because of a conflict between the warnings that the FDA required and the warnings that Levine insisted were necessary. Epstein prefers “field preemption,” in which FDA regulation would displace state law whether or not the FDA-mandated warnings conflict with those sought by a plaintiff, because the FDA alone should control drug labeling.
Epstein suggests that Congress should pass a law guaranteeing preemption, if necessary: “Congress should cut through the legal tangle by explicitly preventing tort plaintiffs from doing an end run around FDA-approved warnings. ”
Hat tip to Overlawyered.