Preemption

By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center. This analysis is cross posted at CAC’s Text & History blog.

Two years ago in Wyeth v. Levine, the Supreme Court refused to allow federal food and drug law to displace state consumer-safety law.  Instead, the Court held that Diana Levine, a Vermont musician whose arm had to be amputated after Levine suffered adverse effects from Wyeth’s brand-name drug, Phenergan, could hold the drug manufacturer liable under state failure-to-warn laws—laws which hold drug and other manufacturers responsible for inadequate safety labels.  Yesterday, in a 5-4 ruling, the Supreme Court held in PLIVA, Inc. v. Mensing that generic drug manufacturers may not be sued under state failure-to-warn law because it would be “impossible” for the generic drug manufacturers to comply with both state failure-to-warn law and federal law.  Given the nearly identical storylines, how did the Supreme Court come up with a happy ending for consumers in Wyeth but a happy ending for big business in PLIVA?

To be sure, there are important differences between the labeling laws for brand-name and generic drugs.  Federal law, for example, requires a generic drug to carry the same label as the brand-name drug it replicates.  But this “duty of sameness” for generic manufacturers is tempered by a duty under federal law to report problems with generic drugs.  So, while generic drug manufacturers cannot unilaterally change their labels, they can—and must—approach the FDA to seek to revise a drug’s label when they have reasonable evidence of a serious problem with the drug.  Such a label change would then go into effect for both brand-name and generic drugs. There is no guarantee, of course, that the FDA will act based on the information provided by the generic drug manufacturer, but the manufacturer’s attempt to achieve a safe and adequate warning label would nonetheless likely serve as a defense to state liability.  In other words, if the generic manufacturer did what it could under federal law, a state failure-to-warn claim should be preempted by federal law because it would be impossible for the manufacturer to comply with both federal and state law.

But if a generic drug manufacturer doesn’t even try to comply with federal drug safety law and state failure-to-warn standards, it is difficult to see how it is “impossible” for the manufacturer to comply with both sets of laws.  As Justice Sotomayor explained in her PLIVA dissent, “because federal law affords generic manufacturers a mechanism for attempting to comply with their state-law duties to warn, . . . federal law does not categorically pre-empt state-law failure-to-warn claims against generic manufacturers.”  

For the majority, led by Justice Thomas, to find impossibility preemption in this context is to twist the word “impossibility” beyond recognition.

It was also yet another victory for the Chamber of Commerce of the United States. The Chamber, through its litigating affiliate, the National Chamber Litigation Center, regularly files briefs as an amicus curiae ("friend of the court") in the Supreme Court on behalf of the business community - and it regularly prevails.

In a recent ACS Issue Brief, I crunch the numbers. Since Samuel Alito became a justice in 2006, the Court has decided 66 cases in which the Chamber of Commerce filed a brief. Of these cases, the party supported by the Chamber has won 46. That's a very high win rate: just under 70 percent. It suggests that while the arguments in the Chamber's briefs probably aren't swaying the justices (amicus briefs rarely do), they are finding a receptive audience at One First Street.

Why has the Chamber been doing so well lately?