Pre-emption & pHARMa

[Guest guest]

It had nothing to do with the current economic crisis or the "octomom," but March 4 was a red-letter day in history. It marked the first time in a LONG time that any branch of los Federales made a logical decision that truly is in the best interest of you, me, and all of the other citizens of the U.S. You see, March 4 was the day the Supreme Court ruled against pre-emption.

I first mentioned pre-emption last July (7/31/08 eTip, subject line: "Pre-emptive strike"), but as a quick refresher, pre-emption is a policy that would make it illegal for consumers who have been harmed by prescription drugs to take legal action against drug companies. Big Pharma has been pushing for this legislation for years, on the basis that a pharmaceutical company can't be sued over a drug or other product once it has been approved by the FDA.

 

The Supreme Court ruled against it by upholding a previous verdict that awarded $6.7 million to a woman whose arm and hand had to be amputated after she developed gangrene as a side effect of an antinausea drug she'd been injected with.

 

She responded to the Supreme Court's decision by commenting that "Next to getting my hand back, it's the least they could have done and the best they could have done."

 

Unfortunately, this particular ruling against pre-emption isn't the final word in the matter...And it doesn't necessarily imply that the Supreme Court is fully on our side. In fact, last year, eight out of nine of the justices ruled in favor of pre-emption in cases involving medical devices.

The difference between the two situations, according to the Court, is that there is "express language in a federal law" against lawsuits involving injuries due to medical devices, whereas cases involving drugs hinge on what is implied in federal regulatory standards. In other words, they claim that the law is very clearly stated when it comes to medical devices and their risks, so people can't take legal action if they're harmed by them. But when it comes to drug injuries and side effects, the legal standards are more of a grey area. And, for now at least, people still retain the right to take legal action against the drug companies whose products put them in harm's way.

 

Of course, Big Pharma lawyers are already looking for loopholes. According to The New York Times article I read, one corporate lawyer commented that the Supreme Court ruling "Narrows the playing field [but] does not eliminate the playing field."

So the fight against pre-emption may not be over, but it is nice to know that we've won this round.

Yours in good health,

 

Amanda Ross

Editor

Nutrition & Healing