How Will the 2008 Election Results Affect the Preemption Debate?

An important issue on the next Congress's policy agenda is to what extent US Food and Drug Administration regulation of a drug or medical product shields manufacturers from liability challenges under state law. The Supreme Court recently heard the high-profile Wyeth v. Levine case, and a decision is expected early next year. If the high court agrees with Wyeth Pharmaceuticals (Madison, NJ) that using a drug according to its FDA-approved label protects the company from liability, the decision would bolster industry's position in many lawsuits. Such a ruling, though, would prompt Rep. Henry Waxman (D-CA) to press for Congressional action to reverse or modify the policy.

Jill Wechsler

Waxman has been leading the antipreemption campaign, with support from many Democrats, consumer advocates, and plaintiffs' attorneys. They believe that consumers should be able to seek redress through state courts for harm caused by drug use because FDA makes mistakes and may fail to include sufficient warnings in product labels. They cite flaws in the drug-approval and postmarket-surveillance systems, as seen in product recalls and serious adverse-event reports. And they consider the threat of liability a powerful incentive for drug manufacturers to fully address product safety concerns. Juries frequently agree with such arguments, especially when a case leads to genuine patient suffering, prompting manufacturers to settle many lawsuits out of court.

The pharmaceutical industry and a broad coalition of business groups headed by the US Chamber of Commerce supports the Republican position that state and local courts lack the expertise and authority to override decisions by FDA or other federal agencies about appropriate product warnings. Bush administration officials added preemption clauses to many regulatory policies involving consumer products, environmental protection, and transportation safety, in addition to FDAregulated drugs and medical devices.

So far, the high court has sided with industry arguments, as in a January 2008 ruling in favor of preemption in a medical-device case involving Medtronic (Minneapolis, MN). But in questioning the attorneys on the Wyeth case in early November, several justices challenged the manufacturer's contention that it had to adhere to FDA-approved labeling and could not strengthen warnings on its own. There was considerable discussion about what safety information Wyeth provided FDA and whether the agency assessed warnings sufficiently.

The general consensus is that individuals can sue drug companies that hide safety data or promote a drug for an unapproved use. The issue in Levine is whether a manufacturer is liable for harm under state requirements even though the company followed FDA decisions on product warnings and labeled indications. If Wyeth loses, pharmaceutical companies fear they will be open to unlimited claims. That could prompt manufacturers to raise prices to cover added liabilities, or to pull products with any safety issues off the market. Sponsors and FDA may decide to ratchet up label warnings, leading to overwarning that could inhibit the beneficial uses of many medicines.

Eliminating preemption for manufacturers that follow FDA rules raises further questions about FDA's ability to balance risks and benefits when making approval decisions. Internal agency staff documents released by Waxman showed that FDA officials disagreed about whether agency regulation can address all possible safety issues. The high court could sidestep the larger preemption controversy and issue a narrow decision that limits preemption to situations where the manufacturer follows all FDA rules, including adverse-event reporting, and FDA specifically considers the safety issue in question. Industry would like to see a strong ruling that preemption applies across the board, except in cases involving fraud or negligence, which would be prosecuted as criminal cases.

The case highlights the importance of the new president's role in appointing members to the Supreme Court. Several long-term members could retire during the next four years. A key test for Obama will be the criteria and expertise he looks for in new appointees who will weigh in on critical medical issues in the years to come.

For more on this topic, see "Industry Changes and Challenges".