In recent years, the Ninth Circuit has broadly construed the Supreme Court’s opinion in Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), which preempts certain state-law claims pertaining to food, drugs, and medical devices regulated under the federal Food, Drug, and Cosmetic Act (FDCA). Of particular note, the court held in PhotoMedex that Buckman “limits the ability of a private plaintiff to pursue claims under state law theories where such claims collide with the exclusive enforcement power of the federal government.” PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010). In Pom Wonderful, the Ninth Circuit put an expansive gloss on that holding: “PhotoMedex teaches that courts must generally prevent parties from undermining, through private litigation, the FDA’s [Food and Drug Administration’s] considered judgments.” Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012). In short, the Ninth Circuit’s deference to the FDA’s jurisdiction is increasing and is grounded in the preemption language of Buckman. Two recent opinions from the Northern District of California, however, illustrate the malleability of those conclusions.
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