Courts may have a larger role in determining if a product should be regulated as a cosmetic or a drug following the Supreme Court's refusal to hear Athena Cosmetics, Inc. v. Allergan, Inc.
Supreme Court Turns Down Athena v. Allergan; 'Torrent' Of Suits To Come?
Following the recommendation of Solicitor General Donald Verrilli, the Supreme Court has declined to review Allergan v. Athena Cosmetics, a case examining if the Federal Food, Drug and Cosmetic Act preempts an unfair competition claim in California characterizing Athena's RevitaLash products as unapproved drugs. Athena predicts a "torrent of novel and disruptive litigation" could ensue.
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