AG’s Ask Supreme Court to Affirm States Power to Sue Drugmakers Over Misleading Labeling

Virginia Attorney General Mark Herring led 22 state attorneys general in filing an amicus brief urging the Supreme Court to uphold states’ right to hold drugmakers liable for misleading claims.

The AGs filed the brief in connection with a New Jersey lawsuit against Merck — considered by the U.S. Court of Appeals for the Third Circuit — accusing the company of misrepresenting the side effects of its osteoporosis drug Fosamax (alendronate sodium).

If the high court sides with Merck in the case, the brief claims, it will set a precedent severely limiting states’ power to sue drugmakers for misleading promotions. The brief argues that, under the 10th Amendment, penalizing such activity is reserved for the states and that state governments have long regulated drug labeling.