We told you last month that the Sixth Circuit had asked the FDA for its views of preemption in the generic drug context. The FDA’s brief was due today, and we were all geared up to read it.
Alas, we must gear down. The Department of Justice filed a letter today with the Sixth Circuit that says:
The Supreme Court has invited the Solicitor General to file a brief expressing the views of the United States on whether that Court should grant certiorari to review the Eighth Circuit’s resolution of the preemption question in PLIVA v. Mensing (Sup. Ct. 09-993) and Actavis v. Mensing (Sup. Ct. 09-1039). The Acting Solicitor General intends to file an amicus brief with the Supreme Court setting for the Government’s view on the preemption issues raised in the Mensing cases, which are the same issues as those in the above-captioned cases pending before this Court.
In view of this, the Government respectfully requests 14 days from the date it files a brief with the Supreme Court to respond to this Court’s request.
And so we and the Sixth Circuit have to wait until the Acting Solicitor General responds to the Supreme Court’s request, a request we discussed here and here. When that happens, we’ll let you know about it.