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
Emily Ullman
Emily Ullman is an experienced civil litigator with a focus on complex product liability and mass tort matters, particularly for clients in the life sciences, consumer goods, and technology sectors. She represents major manufacturers and suppliers in high-stakes disputes across federal and state courts and regularly advises on transactions, regulatory issues, and strategic decisions that carry potential tort exposure.
Emily has defended some of the nation’s most significant product liability, class action, and multidistrict litigations. Her experience includes serving as national coordinating counsel to Mead Johnson in litigation around Enfamil premature infant formula; representing McKesson Corporation at trial in the opioids litigation; and defending AstraZeneca and Bristol Myers Squibb in an MDL involving Type 2 diabetes medication. She currently represents TikTok in consumer protection litigation challenging the platform’s suitability for minors.
Emily has been widely recognized for her accomplishments. She is ranked by Chambers USA (2022–2025), with clients describing her as “great on her feet as an oral advocate,” “a really sharp, tough cross-examiner,” and “one of the smartest people I have known — talented in mass tort and class action litigation.” She has also been named a Law360 Product Liability Rising Star and recognized multiple times by AmLaw Litigation Daily, including as a “Litigator of the Week” runner-up for obtaining complete victories on summary judgment—affirmed on appeal—in consolidated federal and state litigations surrounding the diabetes medication Onglyza. She was also recognized for her role in defending TikTok against state-led consumer protection and First Amendment challenges.
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