Top Food and Drug Cases, 2017, and Cases to Watch, 2018

In case you missed the 2018 Food & Drug Law Institute (FDLI) Annual Conference last month, the FDLI has given us permission to share the book everyone received at the conference, discussing the top food and drug cases of 2017 and cases to watch for the rest of 2018.  I was honored to edit this volume for FDLI.  The link to download the book in PDF form is here.  Below is the annotated Table of Contents from the book.  Several of the cases discussed in the book concern advertising and marketing issues.

The legal issues and subject matter that the book covers are wide-ranging.  In putting it together, we interpreted “food and drug cases” broadly.  We covered topics such as class action jurisdiction, the FTC’s privacy and data security authority, and a “reverse slack fill” case – alleging that the drops emitted by eye medication droppers were too large and resulted in waste – that, as Professor Bill Janssen notes in his introduction, could as easily pertain to batteries as eye drops.  These cases should be of interest to almost any practitioner.  But we also covered topics specific to food and drug law, such as the patent regime for biosimilars, the length of a branded drug maker’s liability tail for generic equivalence, and the government’s regulation of vaping products.

Please download and enjoy the book, and join me in thanking FDLI for creating the book and for allowing us to pass it on to you.

Top Food and Drug Cases, 2017, & Cases to Watch, 2018

Edited by August Horvath, Foley Hoag


August T. Horvath, Foley Hoag

Sandoz v. Amgen

Lynn C. Tyler, Barnes & Thornburg

The Supreme Court and the Federal Circuit hold that the innovator of a biologic cannot obtain injunctive relief to enforce a biosimilar applicant’s disclosure obligations under the Biologics Price Competition and Innovation Act.

Bristol Myers Squibb v. Superior Court of California

Mark E. Haddad and Naomi A. Igra, Sidley & Austin

The Supreme Court limits a state’s jurisdiction over a non-resident drug company in a product liability case to claims brought by plaintiffs who either resided in the state or incurred injury in the state.

T.H. v. Novartis

Anand Agneshwar and Jocelyn Wiesner, Arnold & Porter

The Supreme Court of California finds that a brand-name manufacturer can be liable for failure to update a label even when the plaintiffs used a generic version of the product, years after the brand-name manufacturer last held rights to it.

Eike v. Allergan

William M. Janssen, Charleston Law School

The Seventh and Third Circuits go separate ways on whether eye drop patients, alleging the medicine bottles dispense drops in sizes that are too large, have the constitutional right to sue pharmaceutical companies.

In re Fosamax Products Liability Litigation

James M. Beck, Reed Smith

The Third Circuit rules that even the FDA’s prior consideration of, and decision not to adopt, the safety warnings advocated by a plaintiff does not preempt the plaintiff’s suit under state law.

U.S. ex rel Campie v. Gilead

Anne K. Walsh and Andrew J. Hull, Hyman, Phelps & McNamara

The Ninth Circuit finds that in a False Claims Act action predicated on Food, Drug & Cosmetic Act violations, FDA’s decision not to take the product off the market does not preclude the violation being material.

LabMD v. FTC

Ginger Pigott and Rich Tabura, Greenberg Traurig

The Eleventh Circuit ponders whether the enforcement of reasonable data security practices falls within the FTC’s unfairness authority.

FTC v. Quincy Bioscience

Megan Olsen, Council for Responsible Nutrition

In the Southern District of New York, a District Court finds that the FTC failed to meet its burden to show that the cognitive benefits of a dietary supplement were falsely advertised.

Nicopure Labs v. FDA

Stacy L. Erlich and James William Woodlee, Kleinfeld Kaplan & Becker

The District Court for the District of Columbia rules that vaping products may be deemed subject to the Family Smoking Prevention and Tobacco Control Act even if they do not contain e-liquids or nicotine.

Singleton v. Fifth Generation

August T. Horvath, Foley Hoag and Rebecca Kirk Fair, Analysis Group

The District Court for the Northern District of New York elaborates the standard for a damages model to pass muster under the Rule 23(b)(3) predominance standard in the post-Comcast world.

Significant Settlements of 2017

Jacqueline J. Chan, Kleinfeld Kaplan & Becker

Regulatory, Compliance & Enforcement Developments of 2017

Jonathan A. Havens, Saul Ewing Arnstein & Lehr

Food and Drug Cases to Watch in 2018

The contributing authors

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