The case law governing when federal law pre-empts state products liability law is perhaps the most infernal jurisprudence in the field of civil law. The answer to this seemingly simple question often can seem to depend on the product involved, the agency involved, the state law cause of action that is pleaded or the particular judges deciding the case.
For example, a few years ago the U.S. Supreme Court concluded that a state-law failure-to-warn claim would not conflict with federal regulation of brand-named prescription medicines, relying on the purely theoretical possibility that a manufacturer could change its label in limited circumstances without first obtaining Food and Drug Administration (FDA) approval. See Wyeth v. Levine, 555 U.S. 555 (2009). And yet, shortly thereafter, the court concluded that the same type of state-law failure-to-warn claim would conflict with federal regulation of the generic equivalent of such a brand-name medicine. See Pliva v. Mensing, 131 S. Ct. 2567 (2011).
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