When the New Jersey Supreme Court ruled in Perez v. Wyeth Lab, Inc. that if pharmaceutical manufacturer directly markets to consumers, the learned intermediary doctrine does not apply, it was deemed a “revolutionary,” decision. However, since the ruling, every New Jersey court which has confronted this issue has found that the DTC exception did not apply, due to the fact that the plaintiffs failed to show that the manufacturers ever engaged in DTC advertising, or, if they did, that the advertising had any impact on the plaintiff’s decision to use the drug. The overwhelming majority of states continue to apply the learned intermediary doctrine, and have rejected arguments that DTC advertising undermines the learned intermediary doctrine. With “vigilant monitoring of DTC advertising and repeated references to the physician’s role, this should continue to be the case into the future,” as noted in Reed Smith’s client alert, “The Revolution that Wasn’t: New Jersey’s Direct-To-Consumer Exception to the Learned Intermediary Doctrine.”
For more information on New Jersey’s DTC exception to the learned intermediary doctrine, read the full Client Alert.