Mutual Pharmaceutical Co. v. Bartlett Continues to Alter the True Costs and Risks of Generic Drugs

January 30, 2014

Over the last few decades, the generic drug market has grown substantially. Today, generic drugs account for four of every five drugs sold. The affordability of generics has been a welcome change for drug purchasers throughout the value chain, but thinning protections for generic drug consumers are causing many reasons for concern. Recent Supreme Court decisions, such as Mutual Pharmaceuticals Co. v. Bartlett, have eliminated certain legal remedies for generic drug consumers and lessened incentives for generic drug manufacturers to conduct ongoing safety research. Although federal law strives to ensure that generic drugs are the same as brand-name drugs, Bartlett provides many reasons to believe the distinctiveness of brand vs. generic extends far beyond a price point. Under pre-emption principles, generic consumers are now barred from seeking relief through design-defect or failure-to-warn claims, while brand-name consumers are still afforded these legal remedies. Although generic drugs remain affordable for end users to purchase, this Recent Development examines the true costs and safety risks now associated with generic drugs in light of Bartlett.