Stage-Setting For Circ Split: Generic Drug Preemption?

Law360, New York (March 25, 2010, 12:29 PM EDT) -- Two separate United States Courts of Appeal recently rejected arguments by generic drug manufacturers that they should be treated differently from name-brand manufacturers under the Food, Drug and Cosmetic Act by ruling that the FDCA does not preempt plaintiffs’ state law failure-to-warn claims against generic manufacturers based on the alleged inadequacy of generic drug labels.

The decisions by the Fifth Circuit in Demahy v. Actavis Inc. and the Eighth Circuit in Mensing v. Wyeth Inc., et al., were issued in the wake of, and were informed...
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