Recently, there has been a proliferation of putative class actions targeting allegedly misleading statements (or omissions) on the FDA-approved labels for over-the-counter (“OTC”) drugs. Last year, we explained how these types of claims are vulnerable to a strong federal preemption defense. In short, because the Federal Food, Drug, and Cosmetic Act (“FDCA”) explicitly forbids states from imposing OTC labeling requirements that are “different from,” “in addition to,” or “otherwise not identical” with those provided under federal law, 21 U.S.C. § 379r(a), state-law claims that directly challenge or conflict with the FDA’s decision-making for OTC drug labels are expressly preempted.Continue Reading Another Win for Preemption in Over-The-Counter Drug Labeling Case
New Hampshire Supreme Court Rejects Medical Monitoring Claims
In products and class action cases involving exposure to purportedly hazardous materials, plaintiffs often have trouble demonstrating concrete physical injuries, and in particular concrete physical injuries that would be common across a class. To avoid dismissal and bolster class certification, those plaintiffs sometimes bring so-called “medical monitoring” claims, which seek
Continue Reading New Hampshire Supreme Court Rejects Medical Monitoring Claims