Lars Noah (University of Florida – Fredric G. Levin College of Law) has posted Platitudes about ‘Product Stewardship’ in Torts: Continuing Drug Research and Education
(Michigan Telecommunications and Technology Law Review, Vol. 15, 2009) on SSRN. Here is the abstract:
This paper focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry’s exposure to liability. A growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation of "product stewardship" or "informed choice"). This paper explains the serious flaws in such proposals, but it also suggests one novel basis for imposing liability (distribution restrictions) that might make some sense. Genuine product stewardship, at least if understood as an effort to make the most of a scarce resource, strikes me as far more defensible than the approaches suggested by other commentators.