In yet another preemption victory for consumers, the Supreme Court has vacated an adverse preemption decision and remanded the case for further consideration in light of Wyeth v. Levine, 555 U.S. __ (2009).
The case is PA EMPLOYEES BENEFIT TRUST FUND V. ZENECA, INC., ET AL. and involved a Trust Fund bringing claims against Zeneca and AstraZeneca Pharmaceuticals asserting that the defendants engaged in deceptive conduct in the advertising of its drug Nexium.
The plaintiffs alleged (1) unlawful advertising under the Delaware Consumer Fraud Act; (2) violations of the consumer protection statutes of the 50 states for false, misleading, and deceptive advertising; (3) unjust enrichment, and stated claims under Delaware common law for restitution, disgorgement, and constructive trust; and (4) negligent misrepresentation.
The District Court dismissed the complaint with prejudice. The Third Circuit affirmed finding that the district court was correct in concluding that, under implied conflict preemption, the Nexium advertisements (that complied with the FDA-approved labeling) were not actionable under the state consumer protection laws.
Now, in the wake of Wyeth v. Levine, the Third Circuit will have to reconsider its holding and presumably the case will be reinstated.
Richard J. Arsenault, 2011
