When and How to Defer to the FDA: Learning from Michigan's Regulatory Compliance Defense

Michigan's regulatory compliance defense properly recognizes that an FDA-approved drug carrying an FDA-approved label should not be considered defective. However, the statute's absolute immunity provides no compensation for injured parties in any circumstance, including situations where the FDA process has failed. Nevertheless, it is possible to treat the FDA's approval as significant without eliminating the possibility of all state actions against drug makers by providing a litigation back-up through state attorneys general ("AGs"). This Note examines the question of FDA approval in state tort actions in Part I, discusses Michigan's answer to that question in Part II, and offers a proposal that would block most private actions against FDA-approved drugs (as Michigan has done), but would allow a state AG to bring suits in certain circumstances in Part III.