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Can't satisfy both the FDA and the State? The judge will be the judge of that.

In May 2019, in a move rejecting the reasoning of the Third Circuit, the U.S. Supreme Court dove into two critical aspects of preemption analysis in Merck Sharp & Dohme Corp. v. Albrecht et al., No. 17-290, slip op. (U.S. May 20, 2019). The Court addressed who will decide whether preemption exists (a judge), and how to decide whether preemption exists where FDA action and state law conflict thereby destroying a plaintiff’s related state claims.

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