Attorney General Miyares Leads 23 State Bipartisan Coalition Supporting Individuals Hurt by Bone Drug’s Side Effects

~ Over 500 lawsuits have been filed by Americans alleging Fosamax, a drug used to treat or prevent osteoporosis, caused thigh bone fractures ~ 

RICHMOND, VA – Attorney General Jason Miyares led a bipartisan coalition of 23 state attorneys general in support of individuals suing Merck & Co. for injuries they suffered using Merck’s osteoporosis drug Fosamax. 

The plaintiffs alleged they suffered atypical femur fractures from long term use of the drug between 1999 and 2010, and said that Merck knew about the risk before finally adding it to the warning label in 2011. They have brought claims under New Jersey state law to recover for those injuries. 

The plaintiffs are appealing the U.S. District Court’s ruling that the claims of failure to warn of the risk of atypical femoral fractures were preempted because the Federal Drug Administration (FDA) rejected a warning label that discussed the risks of a stress fractures—a risk totally different than the atypical femur fractures the plaintiffs suffered in this case.

Attorney General Miyares and the other state attorneys general wrote that this decision “risks undermining core principles of federalism and could prevent states from allowing their citizens to hold pharmaceutical companies to account for their actions.” 

The Constitution allows for states to exercise regulatory power to protect their citizens as long as they are not explicitly prohibited from doing so, and the Federal Food, Drug and Cosmetic Act does not contain a provision that expressly preempts state tort claims related to prescription drugs. State consumer protection from dangerous products like pharmaceutical drugs is critical to recovering drug hazards as states can encourage injured people to come forward with information and compensate those with injuries. 

“As Attorney General, I view myself as the people’s protector. State laws that allow Virginians to come forward and hold massive pharmaceutical companies accountable for misleading them or providing false information are crucial aspects of consumer protection. The District Court’s decision here is wrong, strips important protection power away from the states, and should be overturned,” said Attorney General Miyares. 

The coalition wrote that “giving agency action the sort of sweeping preemptive effect that the District Court gave it here threatens to shrink this important body of state consumer protection law.”

The following states joined Attorney General Miyares’ Coalition: Alaska, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New Mexico, Pennsylvania, South Carolina, Texas, Utah, and Vermont.

Read the brief HERE.

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