June 1, 2023
Today, Utah Attorney General Sean D. Reyes joined a bipartisan coalition supporting individuals suing Merck & Co. for injuries they suffered using Merck’s osteoporosis drug Fosamax.
The Plaintiffs claim they suffered atypical femur fractures after using the drug between 1999 and 2010, and Merck knew about the risk before putting a warning label on it in 2012. To recover for those injuries, they have filed claims under New Jersey state law.
The plaintiffs are appealing the U.S. District Court’s ruling that the claims of failure to warn of the risk of atypical femoral fractures were preempted because the Federal Drug Administration (FDA) rejected a warning label that discussed the risks of a stress fractures—a risk totally different than the atypical femur fractures the plaintiffs suffered in this case.
Attorney General Miyares and the other state attorneys general wrote that this decision “risks undermining the core principles of federalism and could prevent states from allowing their citizens to hold pharmaceutical companies to account for their actions.”
As long as the states are not explicitly forbidden from exercising regulatory power to protect their citizens, the Constitution allows them to do so. The Federal Food, Drug, and Cosmetic Act does not expressly preempt state tort claims regarding prescription drugs. State consumer protection against dangerous products such As pharmaceutical drugs is crucial to recovering drug hazards as states can encourage injured people to come forward with information and compensate them.
The coalition wrote that “giving agency action the sort of sweeping preemptive effect that the District Court gave it here threatens to shrink this important body of state consumer protection law.”
The following states joined Attorney General Miyares’ Coalition: Alaska, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New Mexico, Pennsylvania, South Carolina, Texas, Vermont, and Virginia.