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Attorney General Josh Stein Asks U.S. Supreme Court to Uphold States’ Ability to Sue Pharmaceutical Companies to Protect Consumers

Release date: 11/21/2018

RALEIGH) Attorney General Josh Stein today filed an amicus brief to uphold the ability of states to sue pharmaceutical manufacturers when they mislead consumers about the potential side effects of their products. The brief, filed in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, in the United States Supreme Court, argues that Merck, a pharmaceutical company, can be held liable under state law for misleading and misrepresenting the side effects of their drug Fosamax®.

“When drug companies deceive patients or prescribers about their products, they put patients’ health on the line,” said Attorney General Josh Stein. “In the past two years, I’ve filed lawsuits to hold drug companies accountable for their role in fueling the opioid epidemic in our state. I hope the Supreme Court will reaffirm the vital role that states play in protecting consumers from misleading drugmakers.”

A bipartisan coalition of 23 attorneys general argue that if the Court sides with Merck, it will hinder states’ ability to take legal action against a pharmaceutical manufacturer for misleading and misrepresenting its products. Additionally, the attorneys general argue that Merck may be held liable under state law even if it is not liable under federal law.

After suffering from a specific type of fracture, hundreds of Fosamax® users filed personal injury lawsuits against Merck, alleging that it did not warn consumers about the risk of these specific fractures. Merck claims that because the FDA did not approve a warning label for a different type of fracture, it is not liable under state law.

The brief argues that:

  • The Constitution gives the states or the people all powers that are not specifically delegated to the federal government.
  • States have long regulated drug labeling and the duty to warn both physicians and patients about emerging safety risks predates the beginning of federal drug regulations, and this must be upheld by the Court.
  • Merck’s argument would break precedent in the balance between state and federal regulations, especially with regards to consumer protection.

Attorney General Stein has previously filed lawsuits against pharmaceutical companies Insys Therapeutics, Inc., and Purdue Pharma, alleging marketing practices that contributed to the opioid crisis in North Carolina. Read more about those lawsuits here:

Attorney General Stein is joined in filing today’s amicus brief by the Attorneys General of California, Connecticut, the District of Columbia, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, New Jersey, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

A copy of the amicus brief can be found here.

Laura Brewer (919)716-6484


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