Supreme Court May Hear Cosmetics Case Exploring Federal Preemption
This article was originally published in The Rose Sheet
The United States Solicitor General is expected to file a brief early in 2015 on a case examining if the Federal Food, Drug and Cosmetic Act preempts an unfair competition claim in California pertaining to the cosmetics/drugs regulatory divide. The case, Athena Cosmetics vs. Allergan, could be heard by the Supreme Court and bring attention to the way cosmetics are defined and regulated under federal law.
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Firms marketing cosmetics with drug-like properties could be targeted increasingly by suits requiring courts, and even juries, to interpret their regulatory status if the Supreme Court's decision not to hear Athena Cosmetics v. Allergan is seen as an invitation by consumers and the plaintiffs' bar.
Federal food and drug law does not impliedly preempt Allergan's suit against Athena Cosmetics alleging that the defendant's RevitaLash products compete unfairly against the drug firm's Latisse treatment in California, according to a brief filed by Solicitor General Donald Verrilli with the Supreme Court. Athena has argued that the absence of FDA action against its eyelash enhancers signals that their cosmetic positioning is lawful, but Verrilli disagrees, maintaining that such litigation can supplement rather than conflict with FDA regulation.
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