Venable secures preemption victory in California medical device consumer class action

In a ruling issued on September 28, 2011, the United States Court of Appeals for the Ninth Circuit held that federal law preempted California consumer class action claims against the manufacturer of a contact lens cleaning solution because those claims would have required the manufacturer to conduct premarket testing beyond that required by the FDA.

The defendant had marketed its contact lens solution as an effective contact lens disinfectant. The plaintiffs alleged that the defendant’s solution was less effective than other solutions at disinfecting lenses from one specific type of microorganism and therefore labeling the product as a “disinfectant” violated California’s Unfair Competition Law and False Advertising Law.

The Ninth Circuit ruled that federal law preempted plaintiffs’ claims. The court noted that the FDA regulates contact lens cleaning solutions as medical devices, and that the Medical Device Amendments of 1976 (“MDA”) to the Food, Drug, and Cosmetic Act (“FDCA”) preempt some state and local causes of action regarding medical devices.

Partner Ben Whitwell and Of Counsel Christopher Williams, both of Venable LLP’s Los Angeles office, represented the defendant in this case.