PLIVA v. Mensing: A Poor Outcome for Consumers

By Mark Apostolos, Albany Government Law Review[1]

Product manufacturers are generally required by state law to sell a product that: (1) is free of design or manufacturing defects, and (2) carries appropriate warnings putting customers on notice as to the reasonably foreseeable risks of using the product.[2]  Prescription drug products require “reasonable instructions or warnings regarding foreseeable risks of harm,”[3] which are to be provided to either “prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings”[4] or “the patient when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings.”[5]  In addition, like any other negligence claim, a plaintiff may have a cause of action if that duty is breached and they are injured as a result of the manufacturer’s failure to warn the consumer with an adequate label.[6]

In the recent case of Pliva v. Mensing,[7] the Supreme Court rendered a decision whose holding undermines the well-established principles of product liability.  The Court held that generic drug manufacturers can no longer be liable for failure to warn claims where state law conflicts with federal law,[8] effectively rendering generic drug manufacturers immune from state law failure-to-warn tort claims.[9]

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California Releases Cheaper Gasoline…But at What Cost?

In California gasoline prices are reaching $4.65 a gallon and as a result Gov. Brown and state agencies decided to take action.  California decided to allow the sale of winter gasoline a month earlier then usually.  Winter Gasoline is less environmentally friendly because if used during warmer temperatures will evaporate into the atmosphere quicker than alternatives.  This is even true for gas that remains in subterranean storage tanks. It was noted that if a major heat wave hits California the switch to winter gasoline may have a large effect on the air quality.

While gas prices always fluctuate, California is seeing a rise in price above the national average because of problems with their state refineries.  The national average was noted to be $3.814 with California prices reaching  $4.65.

This bring an interesting question to state and local government reform.  With the large impacts that gas prices have on the everyday economy and everyday lives of residents, when should a state intervene in the market in an attempt to lower gas prices?  And how much weight should be given to the environmental effects that may result?

The article showcasing this California action is available here http://www.latimes.com/business/la-fi-gas-prices-governor-20121008,0,7934574.story