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Tag: Consumer Protection Law

Washington and Lee Law Review - Consumer Protection Law


by Anita Bernstein

This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom. These figurative pillars help support one-sided results in court. However, each of the pillars on examination turns out at least a bit shaky. This Article puts them forward for review to start a necessary discussion.

The locus of this Article is products liability, where a court concludes that a manufactured object is defective or could be called defective by a factfinder following a trial. Drug manufacturers enjoy near-immunity from this consequence. Modern products liability identifies three categories of product defect, and courts insulate drug manufacturers from responsibility for all three.

In clarifying an ill-understood state of the law, this Article holds back on overt condemnation of what it observes. Skepticism about the fit between products liability and prescription drugs certainly could be defended. Judges and juries competent enough to assess a more mundane product might be unsuited to the task of determining defectiveness of a prescription drug. Instead of lamenting the absence of products liability redress for injured drug consumers, this Article pursues transparency about what it reports.

The author argues that the current state of the law appears healthier than it really is because unexamined premises about the no-liability status quo sound plausible and soothing: Figurative pillars hold up a barely seen exception to accountability under the law. Prescription drugs look worthier of indulgence than other products because they purport to increase welfare beyond the satisfaction of individual preferences.

In contrast to other products that purport only to give buyers what they want, pharmaceuticals purport to give every one of us what we need. Judgments that transfer money to individuals at the expense of a savior-sector seem perverse. From there, a deferential-to-manufacturers consensus has emerged and holds steady.


by Scott R. Thomas & Mystica M. Alexander

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception to the PLCAA. In that case, families of the victims of the tragic Sandy Hook Elementary School shooting sought to hold those in the chain of distribution of the weapon used in the attack accountable for the harm that resulted from their “unethical, oppressive, immoral, and unscrupulous” marketing of that product. The court allowed this case to proceed on its merits.

This Essay addresses the court’s decision and its implications for lawsuits in other jurisdictions. More specifically, the authors believe that the court wrongly interpreted the PLCAA’s legislative history, reached an incorrect conclusion, and lit a path to the courthouse steps for other plaintiffs with similar claims in certain other jurisdictions.