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Third Circuit to rehear pre-emption cases

Executive Summary

The U.S. Supreme Court's recent ruling in Wyeth v. Levine is already having repercussions for other pre-emption cases. On March 9, the Supreme Court vacated the Third Circuit U.S. Court of Appeals' ruling in Colacicco v. Apotex, which found that state tort claims alleging Apotex and GlaxoSmithKline failed to adequately warn of the risk of suicidal behavior with their antidepressants were pre-empted by FDA-approved labeling (1"The Pink Sheet" DAILY, April 10, 2008). The Supreme Court also vacated and remanded the Third Circuit's ruling in Pennsylvania Employees Benefit Trust Fund v. Zeneca, in which a third party payer claimed AstraZeneca falsely advertised Nexium (esomeprazole) as superior to Prilosec (omeprazole). The Third Circuit ruled that since the ads complied with FDA-approved labeling, they were not subject to state consumer fraud laws (2"The Pink Sheet," Sept. 3, 2007, p. 9)

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