Today’s Decision In PLIVA Is A Sequel to Wyeth Two Years Later Except With a Happier Ending for Corporate America

Washington, DC – On news that the U.S. Supreme Court issued its opinion in PLIVA Inc. v. Mensing this morning, Constitutional Accountability Center, which filed an amicus curiae brief in support of respondents Gladys Mensing and Julie Demahy, released the following statement:

    “Today’s decision is wildly out of step not only with common sense, but also with Wyeth v. Levine – decided just two years ago,” stated CAC’s Chief Counsel Elizabeth Wydra. “Under the Court’s decision today, if a doctor prescribes a brand-name drug to a patient, but the pharmacist – in accordance with law – dispenses a lower-priced generic drug as an alternative, a claim by the patient against the generic drug manufacturer is pre-empted. Yet it wouldn’t have been if the brand-name drug had been used instead. This is an absurd result for America’s consumers that, as Justice Sotomayor put it, ‘makes little sense.’”

    “PLIVA had a duty under federal law to report problems with its drugs,” added CAC President Doug Kendall, “and failed to comply with that duty. To find impossibility preemption in this context is to twist the word ‘impossibility’ beyond recognition. The Court today gave generic drug manufacturers the benefit of a federal law without requiring them to fulfill their federal duty,” Kendall said.

    Wydra concluded, “This ruling simply cannot be squared with the Court’s decision in Wyeth, in which it ruled against preemption for brand-name drug manufacturers in virtually identical circumstances. Today’s decision is a sequel to Wyeth two years later, except with a happier ending for corporate America.”



Constitutional Accountability Center’s case page for PLIVA, Inc. v. Mensing, including a link to our brief:


Constitutional Accountability Center ( is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.


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