Sidestepping Preemption: Generic Drug Litigation in the Aftermath of Mensing

June 27, 2013

PLIVA, Inc. v. Mensing was an enormous and, by some predictions, unexpected victory for generic drug manufacturers (“the Generics”). The Supreme Court held that state law failure-to-warn claims against the Generics—the core claims in generic drug cases—were preempted. The Court found impossibility preemption because the Generics, unlike their brand-name counterparts, were prohibited by federal law from independently strengthening their drug labels.

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