A third appellate decision today about FDCA preemption….it’s definitely clerk turnover season! After studies started casting doubt on the notion that oral phenylephrine (oral PE) was an effective nasal decongestant, consumers across the country and a retail pharmacy sued drug manufacturers under the theory that the manufacturers had produced, marketed, and sold “nasal decongestants containing […]
Category Archives: Preemption
In what seems to be a matter of happenstance today, two courts of appeals issued decisions today holding that state laws relating to tobacco were not preempted. First, in Iowans for Alternatives to Smoking & Tobacco v. Mosiman, the Eighth Circuit vacated a preliminary injunction against an Iowa law that prohibited the manufacture and sale […]
Yogurt company Chobani sold a product it labeled as “sugar free,” even though the yogurt includes four grams per serving of allulose– a naturally occurring sweetener. Consumers sued Chobani for doing so under state consumer protection laws, but an Illinois district court held those claims were preempted by the Federal Food, Drug, and Cosmetic Act–relying […]
The Federal Trade Commission published a policy statement on artificial intelligence in the Federal Register on July 7. Public comments are due July 31. Formally, the policy statement addresses application of section 5 of the FTC Act “to companies that market AI systems.” Section 5 prohibits unfair and deceptive practices in the marketplace. Every state […]
In an opinion issued yesterday in Cantero v. Bank of America, the Second Circuit held that New York’s law requiring 2% interest payments on mortgage escrow accounts is preempted under the National Bank Act, because it “significantly interferes” with federal law, which allows federally chartered national banks to offer mortgage-escrow accounts without requiring them to […]
Kalshi, the website that allows people to bet on pretty much anything, is engaged in a high-profile marketing and public affairs campaign to insist why it is *not* a gambling or betting site. One reason may be to avoid the stigma that surrounds gambling and the predatory nature of the industry. But another reason is […]
The Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA) sets a national standard for interest rates that state-chartered banks may charge on loans, preempting state laws that cap interest at lower rates. The statute expressly authorizes states to opt out of the national standard for “loans made in such State.” In 2023, Colorado announced […]
The news this week is the ongoing Big Tech campaign seeking a federal law to preempt state regulations on artificial intelligence. As reported, some members of Congress are attempting to push an AI preemption provision in the National Defense Authorization Act (NDAA), a must-pass federal bill. The provision would block state laws from regulating the […]
In 2023, New York adopted a law prohibiting the sale of over-the-counter diet pills or dietary supplements “for weight loss or muscle building” to anyone under age 18. It defined the covered supplements as those “labeled, marketed, or otherwise presented for the purpose of achieving weight loss or muscle building.” Under the name “Council for […]
In 2024, the Supreme Court decided Cantero v. Bank of America, unanimously vacating the Second Circuit’s decision finding a New York law on interest on escrow accounts for home mortgage loans preempted by the National Bank Act. At the same time, the Court granted, vacated, and remanded Kivett v. Flagstar Bank, a decision from the […]