Bipartisan AG Coalition Has Bone to Pick with Fosemax Preemption Ruling

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  • A bipartisan coalition of 23 AGs filed a brief in the Third Circuit Court of Appeals in support of plaintiffs who allege they were harmed by the side effects of Fosemax, an osteoporosis drug.
  • In their brief, the AGs argue the district court gave unduly sweeping preemptive effect to federal law when it found that the plaintiffs’ claims were preempted based on the FDA’s prior rejection of a warning label discussing the risks of stress fractures. The AGs assert that true cases of preemption are rare and that courts encroach on state autonomy when they interpret implied preemption broadly.
  • The AGs ask the Court to find that manufacturers need to clear a high bar to show that a federal agency prevented it from complying with state law duties to warn and therefore to reverse the district court’s ruling.
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