We know this is the Drug and Device Law Blog, but the similarities between food labeling preemption and medical device preemption are just too strong for us to pass up. In both contexts, the FDCA has express preemption provisions. The Medical Device Amendments to the FDCA, prohibit any state law or regulation “which is different
If a court tells you your only non-preempted claim is one based on a theory that your labeling does not comply with the Federal Food, Drug & Cosmetic Act (“FDCA”), it’s probably a good idea for your expert so opine. Opting instead for expert testimony based on a consumer’s perspective is risky and likely problematic.
A new published opinion from the Ninth Circuit covers two issues near and dear to our hearts—federal preemption and claims based on outside laboratory testing. We care about federal preemption because . . . well, because we are the Drug and Device Law Blog, where there are some weeks when we write on preemption every
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
We know the real quote attributable to Bill Gates is “content is king,” But as communications continue to become shorter and more compressed, context can get lost in the shuffle; and context as much as content, drives our knowledge and interactions. So, when the court in Henry v. Nissin Foods (U.S.A.) Co., opined that
Today’s case is not about drugs or medical devices. It is about popcorn, a perfect prompt (or as good as ours ever get) for a rant about movies. We are working our way through the Oscar nominees, in anticipation of the upcoming Academy Awards. (Pre-apocalypse, we hosted an annual Oscar party, featuring good food, good
The world may never know how many licks it takes to get to the center of a Tootsie Roll Pop, but we do know it only took three judges on the California Court of Appeals to affirm a demurrer in Tootsie Roll’s favor.
Did you know Tootsie Rolls first came on the market in 1896 and were originally delivered by horse and buggy? Or that they were said to be Frank Sinatra’s favorite candy? And long before the wise old owl bit into the Tootsie Roll pop, the candy was advertising on television dating back to the 1950s. Tootsie Roll has had its home base in New York, New Jersey, and Chicago – where they are still manufacturing 64 million rolls every day. So, what could possibly be wrong with a Tootsie Roll? According to the FDA, nothing, and that’s why the court dismissed the putative class action in Beasley v. Tootsie Roll Indus., 2022 Cal. App. LEXIS 982 (Cal. Ct. App. Nov. 30, 2022).
Plaintiff alleged that she consumed Tootsie Rolls from 2010 to 2016 apparently without knowing that they contained artificial trans fats in the form of partially hydrogenated oils (PHOs). Note: PHOs were on the label. Having consumed the Tootsie Rolls, Plaintiff alleged she was at an increased risk for conditions like cardiovascular disease and type 2 diabetes. PHOs aside, Tootsie Rolls are essentially chocolate flavored sugar. So, sure they play their role in all those nasty obesity-related health conditions. But that cannot serve as the basis for an Unfair Competition Law (“UCL”) claim or an implied warranty claim. As it turns out, thanks to very specific language from both the FDA and Congress, neither could the presence of PHOs before 2018.Continue Reading How Many Judges Does it Take to Toss Out a Tootsie Roll Case?
Tonight, with great pleasure, we will hand out candy to tiny costumed neighbors – the three- and five-year-olds from across the street, who call us “Miss Rachel,” and the seven- and 10-year-olds from next door, who come over daily to play with the new puppy, among others. (Not too many others, we fear – we
They say everything is bigger in Texas and when it comes to cowboy boots – they are actually correct. Built by Bob “Daddy-O” Wade in 1979, the largest cowboy boots in the world measure 35 feet tall and 33 feet long and purportedly can hold 300,000 gallons of beer. They stand in front of a
Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), stands for the proposition that only the federal government may enforce the Food, Drug, and Cosmetic Act and that any state-law claim that depends on the existence of the FDCA is impliedly preempted by 21 U.S.C. § 337(a), which proclaims that all actions to enforce
