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Abby Miles is an associate in the Business Trial Practice Group in the firm's San Francisco office and a member of the firm’s Food and Beverage, Class Action Defense and Construction Teams.

Several recent cases arising under the federal Food, Drug, and Cosmetic Act (“FDCA” or the “Act”), 21 U.S.C. § 301 et seq., highlight the usefulness of preemption as a defense against putative class actions concerning drugs, cosmetics, dietary supplements, medical devices, and other consumer products subject to the Act. The FDCA provides for exclusive enforcement by the FDA and has no private right of action. Implied preemption also extends to state law claims based on allegations that the defendant violated FDA regulations. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n.4 (2001) (citing 21 U.S.C. §337(a)) (“The FDCA leaves no doubt that it is the Federal Government rather than private litigants who [is] authorized to file suit for noncompliance with” the FDCA’s substantive provisions). This article addresses recent federal cases supporting FDCA preemption of state law claims that require the fact finder to improperly assume the FDA’s enforcement power, particularly in the class action context. Continue Reading FDCA Preemption: A Powerful Tool for Defending Class Actions