FDCA Preempts Texas Law Pursuant to Buckman, 5th Circuit Rules

DALLAS - Federal law preempts a Texas statute that requires plaintiffs in failure-to-warn cases to assert that a drug manufacturer withheld or misrepresented material information to the Food and Drug Administration, an appellate court affirmed, citing Buckman Co. v. Plaintiffs' Legal Committee. Lofton v. McNeil Consumer & Specialty Pharmaceuticals. No. 10-10956 (5th Cir.).

On Feb. 22, the 5th Circuit U.S. Court of Appeals ruled that Texas Civil Practice and Remedies Code § 82.007 (b)(1) is a fraud-on-the-FDA provision analogous to the claim considered in Buckman and is therefore preempted by the Food Drug and Cosmetic Act unless the FDA itself …