We’ve blogged several times already about the Alliance for Hippocratic Medicine v. FDA litigation that is now before the Supreme Court. Briefly, a Texas District Court, in a decision that we’ve already described as “results-driven and shoddy,” purported to invalidate more than 20 years of FDA regulation – back to and including the original
FDA
Attenuated (Anti)Vaccine Claims
Of late, the Fifth Circuit has come in for some criticism over rulings involving science, the FDA, and medicines. But apparently even it has its limits—and Article III standing is one.
In Children’s Health Defense v. FDA, No. 23-50167, 2024 U.S. App. LEXIS 1528, 2024 WL 244938 (5th Cir. 1/23/24), a non-profit and several…
How the Abortion Pill Case will Test the SCOTUS Position on Deference to the FDA
If you work in this business long enough, you’ll run into some lawyers who check all the boxes: brilliant, persuasive, funny, and sartorially splendid. One of the most talented lawyers we ever had the pleasure to work with was Peter Grossi. He checked all the boxes, and then some. When Peter was at Arnold &…
FDA and Off-Label Communication – Getting Closer to Truth
In addition to its recent revamp of its “§510(k)” substantial equivalence clearance process for medical devices, (see our post here), the FDA has also been active with respect to off-label communications – another regulatory area of continuing interest to this Blog. Our position has been clear, and the same from the Blog’s beginning…
Tort-Related Implications of Recent FDA Device Draft Guidances
The FDA has taken recent steps that may, or may not, affect product liability litigation. We’re discussing the “may” aspect. For purely regulatory analysis, plenty of other commentary is available.
These actions occurred on September 7, 2023, and involve three “draft guidances” bearing on the “§510(k)” substantial equivalence clearance process for medical devices. Any litigator with even passing knowledge of medical device preemption knows that this − more properly, a prior (1982) version − is the process that the Supreme Court stated, was “focused on equivalence, not safety” in Medtronic, Inc. v. Lohr, 518 U.S. 470, 493 (1996) (emphasis original).Continue Reading Tort-Related Implications of Recent FDA Device Draft Guidances
Cold Remedy/Vitamin C Convenience Pack is Not Deceptive
Lately, there seems to be an overdose of OTC (Over the Counter) drug cases. Everywhere we look, we see more and more lawsuits centered on OTC’s, both in the areas of product liability and consumer fraud. Is it because OTC litigation offers plaintiff lawyers the prospect of a huge potential plaintiff population? Is it because…
N.D. Cal. Sees No Standing or Merit in Eye Cosmetic Claims
Our best college era summer job was working as a staffer for the New Jersey State Senate. The Abscam investigation was ongoing, and it seemed that every week there’d be another empty seat in the Senate chamber courtesy of the FBI. Good times. We doubt we personally performed any services that were useful for Garden…
Yet Another Update on Medical Abortion Litigation: PhRMA’s Amicus Brief in Support of Petition for U.S. Supreme Court Review of the Fifth Circuit Decision
We have posted a few times (here, here, and here) about the Alliance for Hippocratic Medicine v. FDA/Alliance for Hippocratic Medicine v. Danco Labs., LLC litigation, in which an anti-abortion group is seeking to invalidate regulatory actions taken by the FDA with regard to mifepristone, a pharmaceutical FDA-approved for use…
Ninth Circuit Holds No Scienter Required for Misbranding of Drugs
We don’t write a lot on criminal cases, but published opinions in the Ninth Circuit involving the Food Drug and Cosmetic Act always catch our eye. In United States v. Marschall, No. 22-30048, 2023 WL 6135771 (9th Cir. Sept. 20, 2023) (to be published in F.4th), the Ninth Circuit held last week that some…
Fifth Circuit FDA Decision Puzzles
Sometimes there are decisions that we begin to read with an expectation—perhaps based on a thumbnail from Bexis—that we will have a strong impression. Not surprisingly, the expected impression is usually negative. This was the case with Apter v. HHS, No. 22-40802, 2023 U.S. App. LEXIS 23401 (5th Cir. Sept. 1, 2023), which concerned…