Monday, March 9, 2009

Should preemption analysis be different in cases of prescription drugs and medical devices?

That's an interesting question, discussed in a long post at the Drug and Device Law Blog. As they explain, in Riegel v. Medtronic, the Supreme Court found there is preemption for medical devices approved through the premarket approval process. In Wyeth v Levine, it found there is often no preemption for prescription drugs. One basis for distinguishing between drugs and devices is that The Medical Device Amendments of 1976 contain an express preemption clause while the Food, Drug and Cosmetic Act does not have a similar provision for drugs. But, as D&D Blog explains, that's a legal reason for making a distinction, not a policy reason. And Congress is now thinking about eliminating the legal reason. Click here for the full discussion.

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