Wednesday, May 29, 2013

FDA approval completely precludes NY false advertising/consumer protection claims

In re Fosamax (Alendronate Sodium) Products Liability Litigation, 2013 WL 1558697 (D.N.J.)

Plaintiffs Bernadette Glynn and Richard Glynn sued Merck, alleging that its Fosamax caused the former’s femur fracture and that Merck failed to warn about this risk.  Of relevance to this blog, the court dismissed the claims for violation of NY GBL §§ 349 & 350.  Compliance with FDA warning requirements is a complete defense to both statutes, and the court ruled that, since Fosamax had been FDA-approved, the approval was a complete defense (although the failure to warn/breach of implied warranty tort claims survived, so I’m a little confused about the interaction there--is it approval or compliance with all FDA requirements that matters?). In addition, there was no cause of action for false advertising because Glynn didn’t claim to have seen any Fosamax ads.

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