A North Carolina federal court has dismissed an unfair and deceptive trade practices lawsuit against medical device maker Anulex Technologies, Inc. stemming from Anulex’s alleged promotion of its X-close devices for off-label use. Evans v. Rich, No. 5:13-cv-868 (U.S. Dist. Ct., E.D.N.C., order entered June 4, 2014).

The court granted Anulex’s motion to dismiss the state law-based claim for unfair trade practices based on Buckman Co. v. Plaintiff’s Legal Committee, in which the U.S. Supreme Court held that claims which exist “solely by virtue of the requirements of the [Food, Drug, and Cosmetic Act (FDCA)]” are “impliedly preempted” because the FDCA did not create a private right of action. Further, “where private litigants are effectively suing for a violation of the FDCA under the guise of state law, their claims are impliedly preempted.” The court held that plaintiff Bennie Evans’ claim was preempted, but granted his motion for leave to file an amended complaint.