SW Legal studies in Business

States May Not Interfere with the Advertising of Prescription Drugs

Appeals court held that Congress has given the FDA control of the regulation of prescription drugs. Those regulations are highly specific. The states may not interfere. A challenge to the accuracy of a drug ad may not be brought based on state law.


Consumer Protection

Key Words

Drugs; False Advertising; State Law; FDA; Supremacy

C A S E   S U M M A R Y

The Pennsylvania Employees Benefit Trust Fund, which provides health insurance for many of its beneficiaries, sued Zeneca for false advertising in violation of the Delaware Consumer Fraud Act. The Fund claimed the ads for Zeneca’s prescription drug, Nexium, was deceptive, as it claimed to be an improvement on the drug Prilosec, which also treats acid reflux and heartburn. Since the patent on Prilosec was due to expire, it would be much cheaper than the patented Nexium, so the Fund wanted its beneficiaries to take Prilosec, not Nexium, which many patients heard about through public ads. The trial court dismissed the suit; the Fund appealed.


Affirmed. Congress has intended to give the FDA exclusive authority to regulate prescription drug advertising. FDA regulations provide highly specific requirements for prescription drug advertising. Those regulations are inconsistent with state general laws that purport to regulate all types of advertising. Federal law is supreme in such matters, so the state has no right to attempt to regulate the advertisements for the drugs in question.


Pennsylvania Employees Benefit Trust Fund v. Zeneca, Inc., 499 F.3d 239 (3rd Cir., 2007)

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