Preemption in FDA Monograph OTC Cases Explained

Two Covington & Burling attorneys say the Federal Food, Drug, and Cosmetic Act preemption provision for over-the-counter medications is “expansive. Although there are a few outlier cases in the food labeling context, courts have interpreted the preemption provision for OTC medications to mean what it says: state law claims are preempted if they seek to impose any requirements that differ in any way from an FDA monograph.”

Writing in an online post, the attorneys review major preemption decisions involving OTC drug monographs and the minority of decisions that declined to find preemption, particularly involving food labeling.

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