On this date in 1896 the Dutch completed the harbor at IJmuiden. (That capital J is not a mistake. The I and J go together as a digraph, and they form a ligature that effectively makes up a single letter in the Dutch language.) The IJmuiden harbor has an interesting history. It connects Amsterdam to the North Sea via canals. After the Germans invaded the Netherlands in 1940, the Dutch Royal family left the country from IJmuiden. The Germans then used the IJmuiden harbor to house their torpedo boats and midget submarines. After D-Day, the Allies bombed IJmuiden. The American Air Force employed various weapons to penetrate the German concrete bunkers, including rocket-powered Disney bombs. The bombs were named after war propaganda efforts by the Disney Studio. Today IJmuiden harbor welcomes cruise ships. It is a safe harbor.
(Yes, that is a rather long and pointless windup to get to our safe harbor case, but we are busily planning our Benelux Summer vacation, so you’ll have to excuse the travelogue/history.)
In the past we have had several opportunities to discuss state consumer protection laws containing “safe harbor” provisions that bar suits over conduct that was authorized, approved, or permitted by governmental agencies. Applying these safe harbor provisions, courts have dismissed consumer protection claims that attacked FDA-approved actions (usually labeling) after finding that the challenged conduct had the imprimatur of an agency. One example was the DePriest case in the Arkansas Supreme Court. The plaintiff in that case claimed that the defendant fraudulently marketed Nexium as better than older drugs that – allegedly – did essentially the same thing. The case was styled as an economic-loss-only class action. The Arkansas Supreme Court threw the case out and we blogged about it here in 2009.