Shortly after the Supreme Court decided Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), we predicted that that the other side would attempt to use that decision “for nefarious purposes.”  We chronicled their first, “meat-axe” attempt here, where MDL plaintiffs argued that Loper Bright somehow abolished implied preemption in tort cases altogether.  Not surprisingly, that argument got the back of the judicial hand.  In re Suboxone (Buprenorphine/Naloxone) Film Products Liability Litigation, 761 F. Supp.3d 1069, 1086 (N.D. Ohio 2024) (Loper Bright “says little, if anything, about preemption doctrine” since preemption “involves determining the intent of Congress, not an agency”).  A second broad-brush attempt – this time attacking PMA preemption − failed equally miserably in Ehlers v. Abiomed, Inc., 792 F. Supp.3d 941 (E.D. Mo. 2025). “[B]ecause the Riegel Court did not defer to the FDA’s interpretation of the MDA’s preemption clause,” so Loper Bright did not apply at all.  Id. at 952 n.1 (emphasis original).  We found that argument particularly ironic, since the Supreme Court opinion that actually did rely on FDA statutory interpretation, explicitly employing Chevron deference, was the pro-plaintiff decision in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).

But in the past couple of months, plaintiffs in much higher profile product liability cases have had their Loper Bright-based anti-preemption arguments roundly rejected. 

In Monsanto Co. v. Durnell, 146 S. Ct. 2001 (2026), which we’ve already discussed more generally here and here, the Supreme Court rejected the plaintiff’s claim that the EPA’s “procedures for registering pesticides and approving pesticide labels” were ultra vires under Loper Bright, and therefore (plaintiff argued) could not have preemptive effect.  146 S. Ct. at 2013.  That was flatly “incorrect.”  Id.  Given the statute’s express delegation of power to EPA to enact regulations and to “determine” labeling compliance, Loper Bright, had no effect at all on preemption.

[The statute] empowers EPA to “prescribe regulations. . . .”  And [it] expressly directs EPA to register pesticides and determine that [their] labeling complies with [the statute’s] many specific requirements.  During that extensive registration process, EPA critically evaluates the pesticide label to ensure that the label contains all warnings necessary to protect human health.  After EPA makes a determination about the appropriate warnings for a pesticide’s label, a manufacturer is legally required to use that label unless and until EPA subsequently approves or requires a new label.

Id. (citations omitted).  Given the EPA’s regulatory power, Durnell considered it just like the FDA – indeed, Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), the FDA PMA preemption decision, was “dispositive here.  If FDA’s premarket approval of medical devices preempted additional state-law requirements, so too must EPA’s registration of pesticides and approval of pesticide labels.”  146 S. Ct. at 2012.

Even more recently, in Yousefzadeh v. Johnson & Johnson Consumer, Inc., ___ F.4th ___, 2026 WL 2192415 (2d Cir. July 30, 2026), another appellate court rejected a similar Loper Bright-related argument in the OTC drug preemption context.  “[T]he FDCA authorizes the FDA to promulgate regulations, including labeling requirements, that govern OTC drugs; these regulations therefore fall within the scope of the FDA’s authority and have preemptive effect.“  Id. at *7 (citations and footnote omitted).  The footnote directly addressed Loper Bright:

To the extent Consumer Plaintiffs contend that Loper Bright [citation omitted], upends this rule by overturning Chevron [citation omitted], and ending the era of Chevron deference, that argument fails.  Following Loper Bright, . . . [a] statute may nevertheless still authorize an agency to “give meaning to a particular statutory term,” and to “prescribe rules to ‘fill up the details’ of a statutory scheme” through regulation.  Thus, Loper Bright does not subvert agencies’ authority to promulgate preemptive regulations pursuant to the authority vested in them by statute − authority the FDCA vests in the FDA here.  Indeed, the Supreme Court has given preemptive effect to federal regulations since before Chevron.

Id. at *7 n.9 (Loper Bright citations and quotation marks omitted).

So far every court that has been presented with a Loper Bright argument against preemption in a product liability case has rejected it – uniformly recognizing that Loper Bright: (1) only deals with agency interpretation of statutes, (2) does not reduce in the least the power of the FDA (and similarly situated agencies) to promulgate regulations, and to approve products, pursuant to congressional delegations of power, and (3) that such discretionary agency actions have full preemptive force.

Now, if only a defendant would only use Loper Bright equally aggressively to contest the continued viability of Lohr.