Tag Archives: preemption

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

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

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

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

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

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

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

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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patent publication privilege mostly protects licensee against licensor’s false advertising claims

 AU New Haven, LLC v. YKK Corp., No. 15-cv-3411-GHW, 2020 WL 4366394 (S.D.N.Y. Jul. 30, 2020) Summarizing only a few key issues: YKK entered into an exclusive licensing agreement (the ELA) with the owners of a recently issued patent. The … Continue reading

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9th Cir. revives suit against allegedly deceptive “prescription pet food” marketing

Moore v. Mars Petcare US, Inc., No. 18-15026, — F.3d —-, 2020 WL 4331765 (9th Cir. Jul. 28, 2020) Over a dissent, the court of appeals reversed the dismissal of plaintiffs’ claims based on allegedly deceptive marketing of “so-called prescription … Continue reading

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statements to 3 of 15 market participants weren’t “commercial advertising or promotion”

Globe Cotyarn Pvt. Ltd. v. Next Creations Holdings LLC, No. 18 Civ. 04208 (ER), 2020 WL 4586892 (S.D.N.Y. Aug. 10, 2020)  Globe, a fabric manufacturer, sued a fabric patent holder, AAVN, and its subsidiary, Next Creations, for allegedly falsely telling … Continue reading

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