Attorney General Mark R. Herring led a bipartisan group of 22 state attorneys general in urging the Supreme Court to uphold states’ ability to sue pharmaceutical manufacturers when they mislead consumers about the potential side effects of their products. In an amicus brief filed in the United States Supreme Court Nov. 21, Attorney General Herring and his counterparts argue that Merck, a pharmaceutical company, should be held liable under state law for misleading and misrepresenting the side effects of their drug Fosamax®. 

“Having the ability for states to sue pharmaceutical and opioid manufacturers when they have misrepresented their products or misled consumers is crucial,” said Attorney General Mark Herring. “We cannot let these companies take advantage of folks, or get away with hurting people. Just this past June, I filed a lawsuit against Purdue Pharma for its role in creating and prolonging the opioid crisis in Virginia. This is why I am leading this amicus today, to make sure that state attorneys general continue to have the ability to hold pharmaceutical and opioid companies accountable.”

The 22 state coalition, led by Attorney General Herring, filed an amicus brief today in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, arguing that if the Court sides with Merck, it will hinder states’ ability to take legal action against a pharmaceutical manufacturer for misleading and misrepresenting its products. Additionally, the attorneys general argue that Merck may be held liable under state law even if it is not liable under federal law. 

After suffering from a specific type of fracture, hundreds of Fosamax® users filed personal injury lawsuits against Merck, alleging that it did not warn consumers about the risk of these specific fractures. Merck claims that, because the FDA did not approve a warning label for a different type of fracture, it is not liable under state law. 

The brief argues that: 

  • The Constitution gives the states or the people all powers that are not specifically delegated to the federal government. 
  • States have long regulated drug labeling and the duty to warn both physicians and patients about emerging safety risks predates the beginning of federal drug regulations, and this must be upheld by the Court.
  • Merck’s argument would break precedent in the balance between state and federal regulations, especially with regards to consumer protection. 

The amicus brief is led by Virginia Attorney General Mark R. Herring and is joined by state attorneys general from California, Connecticut, the District of Columbia, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.