Mission Impossible: Impossibility Preemption Post-Levine

Law360, New York (May 8, 2012, 1:29 PM EDT) -- In Wyeth v. Levine[1], the U.S. Supreme Court held that the standard for finding impossibility preemption was whether “clear evidence” existed that the U.S. Food and Drug Administration (FDA) would have rejected the label change required by state law, thus making it impossible for the manufacturer to comply with both state and federal requirements.

In doing so, the court created more questions than answers.

The court did not define exactly what constitutes “clear evidence,” and since then it has been seemingly impossible for drug manufacturers to...
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