Con law: Federalism

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The federal Food and Drug Safety Act (FDSA) includes a preemption clause providing that “[n]o requirement based on health and safety shall be imposed under State law with respect to the advertising or promotion of prescription drugs.” Eli Lilly (a pharmaceutical company) advertises that its Cialis drug (for erectile dysfunction) is safe for most men but warns: “Contact your doctor or seek emergency medical attention if your erection is painful or lasts longer than 4 hours. A prolonged erection can damage the penis.” A man takes Cialis and sustains an erection lasting much longer than usual. Right at the four-hour mark, he visits his doctor’s office and is devastated to learn that his penis has already sustained long-term damage. The man brings a state common-law tort action in federal court for negligence on the theory that Eli Lilly failed to exercise reasonable care when it designed and tested Cialis. Eli Lilly moves to dismiss, alleging that the FDSA preempts the suit. Is a court likely to rule that the FDSA preemption clause preempts this suit?

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