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Defective Because Effective

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An op-ed in the St. Paul Pioneer Press, by the Attorney General of Minnesota, indicates that his state is about to invoke Product Liability law against manuracturers of ephedrine and pseudo-ephedrine-based decongestants. How, you ask, are these products defective? Glad you asked. Here is the AG's explanation:

"Minnesota, like all other states, imposes liability on manufacturers of unreasonably dangerous products regardless of whether the products are legal. If the design of a legal product is defective and thereby poses an unreasonable risk of harm to consumers or third parties affected by the product, the manufacturer is liable for the damages the product causes. In deciding whether a product is defective, courts look to factors such as the availability of safer alternative designs and the overall utility of the product in comparison to its risks. The manufacturers of pseudo-ephedrine/ephedrine products knew for years there was a safer design for their cold tablets made from phenylephrine. Unlike pseudoephedrine/ephedrine, phenylephrine cannot be converted into meth. The manufacturers have been selling this alternative product in Europe for years. Pfizer finally just released such a safer product in the United States. Minnesota law clearly authorizes the state to sue these manufacturers for selling a defective product when they knew a safer alternative was available."

In brief, then, the products are defective and unreasonably dangerous because they can be misused. [So can guns, so can cars, so can knives.] But phenylephrine (like a gun-lock? like a car with a speed-limiter? inapposite analogies, you say? read on.) is apparently safer, and should have been used instead.

Except that a voyage to my beloved Wikipedia finds the following mention:

"Oral phenylephrine is extensively metabolised by monoamine oxidase, an enzyme which is present in the stomach and liver. Therefore, compared to orally-taken pseudoephedrine, it has a reduced bioavailability, and is less effective as a nasal decongestant."

And this:

"Some popular cold remedies containing phenylephrine: Canada's hot lemon Neocitran, Britain's Lemsip, and the United States' Alka-Seltzer Cold Effervescent formula and DayQuil Capsules.

I get it. Pfizer is liable because it marketed a more effective decongestant than Alka-Seltzer! It turns out the analogy to the locked gun (less effective in an emergency than one ready to use) is more apposite than I thought.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.