New York Court: Federal Food, Drug, and Cosmetics Act Preemption Provision Is Not Retroactive
On February 22, 2012, the Supreme Court of the State of New York in Feinberg v. Colgate-Palmolive Co. found that the preemption provision of the Federal Food, Drug, and Cosmetics Act (FDCA) cannot be applied retroactively to events before the provision’s enactment in 1997.
The plaintiffs’ suit was initiated when Arlene Feinberg discovered she had contracted mesothelioma, which she alleged was caused by exposure to asbestos contained in Colgate’s Cashmere Bouquet talcum powder between the 1950s and 1980s. The plaintiffs claimed that the powder did not contain any warning regarding the hazards associated with asbestos in violation of the FDCA, which was enacted in 1938 to prohibit the adulteration or misbranding of food, drugs, devices, tobacco, and cosmetics.
The defendants moved to dismiss, noting that the FDCA was amended in 1997 to add a preemption provision for the labeling of cosmetics (the “Preemption Clause”). The defendants argued that the Preemption Clause preempted the plaintiffs’ common law failure to warn claim. However, the court disagreed, stating that “retroactivity should not be read into a statute unless the law expressly provides for such relief or necessarily requires it.” Because the Preemption Clause contains no retroactivity provision, the court found that it cannot be applied to injuries sustained before 1997. The court further noted that although Ms. Feinberg’s claim for injuries may have accrued when her disease manifested, and after the Preemption Clause became effective, the relevant time frame for applying the FDCA is the period in which she actually used the product. The court, therefore, refused to apply the Preemption Clause to use of a product that occurred decades before the Clause existed.
Finally, the court found that the plaintiffs’ claims were neither expressly nor implicitly preempted by the Supremacy Clause of the United States Constitution. As such, the court denied the defendants’ motion to dismiss, permitting the plaintiffs to proceed with their claim for asbestos-related injury.