Supreme Court Review Of Athena Cosmetics Case, Federal Preemption Argument Unlikely
This article was originally published in The Rose Sheet
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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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.
Following the recommendation of Solicitor General Donald Verrilli, the Supreme Court has declined to review Allergan v. Athena Cosmetics, a case examining if the Federal Food, Drug and Cosmetic Act preempts an unfair competition claim in California characterizing Athena's RevitaLash products as unapproved drugs. Athena predicts a "torrent of novel and disruptive litigation" could ensue.