Earlier I wrote about the Levine/Wyeth preemption case and it was discussed today among many other cases, in the PFAW/SCOTUSBlog conference call on the upcoming Supreme Court term.

Tom Goldstein of SCOTUSBlog and a Partner at Akin, Gump, stated that he believes this case could have far reaching implications. Goldstein stated that while the SCOTUS has read a broad concept of preemption in FDA approval of medical devices (as it did in Reigel, where the legislation at issue included an express preemption clause. By contrast, it has not in the pharmaceutical drugs area. In the Levine case, the legislation in question does not contain an express preemption clause (indeed it seems to contain an express disavowal of preemption.) In fact, Wyeth is arguing conflict preemption (as opposed to implied preemption) - that it can not comply with federal regulation while avoiding potential state law liability. The twist in this case is that the FDA issued an agency comment that supported Wyeth's position, thus bringing the Chevron deference issue into play.

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