Vermont Senator Patrick Leahy plans to introduce new legislation that will reverse a 2011 decision by the Supreme Court that protects generic drug manufacturers from some tort laws. Three years ago a woman sued a brand drug manufacturer for failing to warn, while last year a woman who was hurt by the generic version of the same drug, and harmed in nearly the same way, was unable to sue for failure to warn simply because the drug was a generic. The Supreme Court found that because generic manufacturers are required by federal law to use the same label as the brand name equivalent, they are protected from tort law, even if they know the label fails to warn.
According to Senator Leahy, “The Mensing decision creates a troubling inconsistency in the law with respect to prescription drugs. If a consumer takes the brand-name version of drug, she can sue the manufacturer for inadequate warnings. If the pharmacy happens to give her the generic version, she will not be compensated for her injuries. The result is a two-track system that penalizes consumers of generic drugs—even though many consumers have no control over which drug they take, because state law and their health insurance plan require them to take generics if they are available. I will introduce legislation to address this contradiction so that consumers are fully protected from harm and receive adequate warnings.” More Sen. Leahy to Push for Supreme Court Generic Drug Decision Reversal