Like the radio stations of yore did with songs, we offer up two related posts back-to-back instead of the usual one. We cannot offer a “favorite artist” as the source of consecutive songs, we offer two posts that relate to the legal implications of some of the typical things that FDA does and has been
No Private Right of Action Under the FDCA in Big Sky Country

We have been to Montana only once. Through various life events, we have traveled by highway from the San Francisco Bay Area to the Midwest multiple times, so we are somewhat familiar with the mountains of Utah, western railroad towns like Cheyenne and North Platte, and the long rolling expanse known as Nebraska. We never…
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…
Ninth Circuit: Call a Spray a Spray – Butter Substitute Labeling Claims Preempted by the FDCA

We start with the usual poodle report – actually with a comment that these may be drawing to a close, as Luca is only a few points from finishing his championship and coming home. We suspect this will cause little grief for readers of this blog (the Drug and Device Law Rock Climber and other…
Federal Court Confirms that Anti-Vaxxers Do Not Have a Constitutional or Statutory Right to Endanger Everyone Else.

Last year we recounted a decision that denied a preliminary injunction to selfish New Mexicans who think that they have a right to endanger others by refusing to be vaccinated against the SARS-CoV-2 virus, which causes COVID-19. Specifically the court denied relief to a registered nurse who claimed that she has a right to treat…
“Knowing” and “Intentional” Conduct in the FDCA

At the end of the term, the Supreme Court, in Ruan v. United States, 2022 WL 2295024,142 S. Ct. 2370 (2022), vacated the convictions of a couple of alleged “pill mill” doctors under the Controlled Substances Act upon finding that the government’s proof in their criminal trial did not meet the standard required…
Federal Court: Anti-Vaxxers Do Not Have a Constitutional or Statutory Right to Endanger Everyone Else

Today we discuss a putative class action in which the named plaintiffs are a registered nurse who refuses to take a basic precaution to protect her vulnerable patients and a mother who is more interested in displaying her livestock than protecting her neighbors. Brought on behalf of all New Mexico residents who are equally selfish,…