Abstract: The U.S. Supreme Court’s 2011 decision in PLIVA v. Mensing left consumers of generic drugs without a remedy for failure-to-warn claims. The Court held that FDA regulations made it impossible for a generic drug manufacturer unilaterally to enhance its warning label. Because of this impossibility, the Court held that the FDA regulations preempt state failure-to-warn claims. The FDA regulations do not, however, preempt brand name drug consumers’ claims against brand name drug manufacturers. Accordingly, consumers stand in starkly different positions depending on whether they consumed a brand name or a generic drug. This Note argues that the FDA should amend its regulations to allow all manufacturers unilaterally to enhance their warning labels. This would allow both generic and brand name consumers to recover from the manufacturer that produced the inadequately-labeled drug that was consumed.
BCLR Releases Vol. LIV No. 2
Boston College Law Review is pleased to announce the publication of our March 2013 issue. • Jeremy Waldron, Separation of [...]
BCLR Elects New Board of Editors
On March 22, 2013, the membership of the Boston College Law Review elected a new Board of Editors for the [...]
BCLR Editors Win Student Writing Competitions
Two members of the Boston College Law Review‘s Executive Board, Laura Kaplan and Michael Palmisciano, recently won national writing competitions [...]