U.S. Supreme Court Signals Interest in Generic Drug Preemption

In a case of potential significance to branded drug manufacturers that could result in different standards of liability governing them and their generic counterparts, the U.S. Supreme Court signaled it may be interested in addressing federal preemption in the context of generic drug labeling. On May 24, 2010, the United States Supreme Court issued an order in the cases of PLIVA, Inc. v. Mensing, Case No. 09-993, and Actavis Elizabeth, LLC v. Mensing, Case No. 09-1039, inviting the Solicitor General “to file briefs in these cases expressing the views of the United States.” The issue in Mensing is whether generic-drug makers can be held liable for providing allegedly inadequate warnings on product labels. In an article appearing in the March 25, 2010 issue of Law360, we discussed Mensing and other cases and predicted that the Supreme Court might have an opportunity to address this issue. To read the article from Law360, click here.