Tag Archives: preemption

Classmates.com, the right of publicity, and copyright preemption

Posted on November 2, 2021 by rtushnet

Callahan v. PeopleConnect, Inc., 2021 WL 5050079, No. 20-cv-09203-EMC (N.D. Cal. Nov. 1, 2021) Plaintiffs in this putative class action alleged that PeopleConnect misappropriated their names, photographs, and likenesses and used the same in advertising its products and services, “including … Continue reading →

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“virologist developed” etc. plausibly implies disease prevention

Posted on October 25, 2021 by rtushnet

Corbett v. PharmaCare U.S., Inc., 2021 WL 4866124, No. 21cv137-GPC(AGS) (S.D. Cal. Oct. 19, 2021) This is a putative class action for violations of consumer fraud statutes in the sale of Sambucol, a dietary supplement that contains a “proprietary extract” … Continue reading →

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competitor succeeds in enjoining sale of competing but non-FDA-cleared medical devices

Posted on October 7, 2021 by rtushnet

Telebrands Corp. v. Vindex Solutions LLC, 2021 WL 534361, No. 21-cv-00898-BLF (N.D. Cal. Feb. 12, 2021) Telebrands sells stuff, including the Hempvana Rocket, a handheld transcutaneous electrical nerve stimulation (TENS) unit, “a pain-relieving pen that uses TENS therapy in the … Continue reading →

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two “kills 99.9% of germs” cases, divergent results

Posted on September 15, 2021 by rtushnet

Mier v. CVS Pharmacy, Inc., 2021 WL 1559367, No. SA CV 20-01979-DOC-ADS (C.D. Cal. Mar. 22, 2021) Another pandemic case, this one alleging that CVS’s Advanced Formula Hand Sanitizer misleads consumers by representing that it kills 99.99% of germs. The … Continue reading →

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infant/child painkiller case dismissed as preempted

Posted on September 13, 2021 by rtushnet

Youngblood v. CVS Pharmacy, 2021 WL 3700256, No. 2:20-cv-06251-MCS-MRW (C.D. Cal. Aug. 17, 2021) Another infant/children acetaminophen consumer protection case. This one dismisses the claims as completely preempted by the FTCA. Plaintiffs argued that their claims are consistent with the … Continue reading →

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Pom Wonderful applies to pharmaceuticals, but “implied FDA approval” claim still fails

Posted on August 30, 2021 by rtushnet

Belcher Pharms., LLC v. Hospira, Inc., 1 F.4th 1374 (11th Cir. 2021) Belcher alleged that the labels for two of Hospira’s drugs falsely implied that the products and their uses were FDA-approved. The district court rejected that claim on the … Continue reading →

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no preemption of state claims where FDA didn’t regulate cosmetic talc at all

Posted on August 11, 2021 by rtushnet

Johnson & Johnson v. Fitch, No. 2019-IA-00033-SCT, — So.3d —-, 2021 WL 1220579 (Miss. Apr. 1, 2021) The Mississippi AG sued J&J under the Mississippi Consumer Protection Act for selling talcum powder products, alleging that J&J failed to warn of … Continue reading →

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100% good news: 7th Cir. reverses “100% grated parmesan cheese” dismissal

Posted on December 11, 2020 by rtushnet

Bell v. Publix Super Markets, Inc., 2020 WL 7137786, — F.3d –, Nos. 19-2581, 19-2741 (7th Cir. Dec. 7, 2020) Note: Then-Circuit Judge Barrett was a member of the panel when this case was submitted but did not participate in … Continue reading →

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FDA preemption/preclusion after Pom Wonderful: still powerful for drugs

Posted on September 21, 2020 by rtushnet

Exela Pharma Sciences, LLC v. Sandoz, Inc., 2020 WL 5535026, No. 19-cv-00318-MR (W.D.N.C. Sept. 15, 2020) Exela sued Sandoz for unfair and deceptive trade practices in violation of North Carolina law; tortious interference with prospective business advantage; and Lanham Act … Continue reading →

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Second Circuit finds conflict preemption of publicity rts for unauthorized music sample

Posted on August 21, 2020 by rtushnet

Jackson v. Roberts, No. 19-480 (2d Cir. Aug. 19, 2020) Judge Leval, kindly citing my work as well as that of other scholars, finds a right of publicity claim against a remix album preempted by the Copyright Act/Supremacy Clause through … Continue reading →

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