Third Circuit: FDA Ad Regulation Preempts State Law Consumer Protection Claims

The U.S. Court of Appeals for the Third Circuit has ruled that federal law preempts certain false advertising claims under state law because the U.S. Food & Drug Administration has "exclusive authority" to regulate prescripton drug advertising.  The court ruled that allowing state consumer fraud laws to dictate the parameters of false and misleading advertising in the prescription drug context would pose obstacles to federal objectives in protecting prescription drug users.  A dissenting judge argued that such preemption of state law was unwarranted because the FDA does not have the power to require preapproval of drug advertising and wrong because the agency lacks the resources to police such advertising.  See Shannon Duffy's story for The Legal Intelligencer.

JDP