ENGEL, Circuit Judge.
This case squarely presents a question which this circuit has in the past left undecided: whether the federal Food, Drug & Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., impliedly provides a private cause of action for individuals harmed by violation of the FDCA. The defendants bring this interlocutory appeal of the district court's denial of their motion to dismiss for lack of federal jurisdiction. Because we conclude that Congress did not intend to create a private cause of action when it enacted the FDCA, we reverse.
Plaintiffs initiated this action in the district court upon the jurisdictional premise that the FDCA created a private, federal right of action. Mary Ruth Bailey ("Bailey") is the personal representative and administratrix for Howard Bailey, who died as a result of a toxic reaction to a drug refilled for him without a prescription. The FDCA requires that the drug in question be dispensed only with a valid prescription. 21 U.S.C. § 353(b)(1). Bailey sued under the FDCA and state statutes, claiming that had the defendants obeyed the FDCA, the drug would not have killed Mr. Bailey. Had he gone to a doctor to get a refill prescription, argue the plaintiffs, the doctor would have performed a blood test, discovered the reaction, and taken him off the drug before it became lethal to him. Defendants moved to dismiss the case, contending that the FDCA does not create a private cause of action and that the case offered no other basis for federal jurisdiction. The district court denied the defendants' motion, but, recognizing the importance of this threshold issue, it certified the case for immediate appeal under 28 U.S.C. § 1292(b). This court granted the defendants' petition for leave to appeal. Bailey, et al. v. Johnson, et al., No. 938524, slip op. at 1 (6th Cir. Oct. 19, 1993).
The FDCA does not explicitly create a private cause of action, so we must determine whether such a cause of action should be implied. The Supreme Court has addressed federal question jurisdiction in a suit involving the FDCA, but the Court did not consider whether the Act alone authorized the suit. In Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), the Court clearly stated, "In this case, both parties agree with the
Bailey argues that a case from this circuit, In re Bendectin Litigation, 857 F.2d 290 (6th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989), established a private right of action under the FDCA. In that case, however, this court faced the unusual situation of a plaintiff, after losing in a jury trial, contesting the court's jurisdiction on appeal. In that situation, the court sought and found minimal federal jurisdiction sufficient to uphold the verdict already handed down.
857 F.2d at 300. However, the problem presented by that case is quite different from this one, where defendants have properly challenged the sole basis of the plaintiff's federal claim at the outset of litigation. In Bendectin Litigation, this court left open whether the FDCA permitted private actions: "Until this court or the Supreme Court holds that there is no implied private right of action under the FDCA, the opposite position cannot be deemed either frivolous or unsubstantial." 857 F.2d at 300.
While the question remains unresolved in this circuit, other courts have answered it by denying the private cause of action. See Pacific Trading Co. v. Wilson and Co., 547 F.2d 367, 370-71 (7th Cir.1976); Griffin v. O'Neal, Jones and Feldman, Inc., 604 F.Supp. 717 (S.D.Ohio 1985); Keil v. Eli Lilly & Co., 490 F.Supp. 479, 480 (E.D.Mich. 1980); National Women's Health Network, Inc. v. A. H. Robins Co., 545 F.Supp. 1177 (D. Mass.1982); American Home Products Corp. v. Johnson and Johnson, 436 F.Supp. 785, 791 (S.D.N.Y.1977), aff'd, 577 F.2d 160 (2d Cir.1978); Clairolo, Inc. v. Suburban Cosmetics and Beauty Supply, Inc., 278 F.Supp. 859, 860-61 (N.D.Ill.1968). No federal court has resolved this question in favor of the plaintiff's claim. The facts in these cases vary widely, but Bailey's attempt to distinguish them on their facts is fruitless; each case involves a private claim based on the FDCA, and each court denies that the FDCA permits the claim. Nor is Bailey's argument advanced by her distinction that most product liability cases under the FDCA concern dangerous drugs, while hers addresses the misbehavior of a druggist. Bailey offers no rationale for permitting a claim under certain factual situations but not others, not in targeting the druggist rather than the drug.
One of the district court cases, National Women's Health Network, 545 F.Supp. 1177 (D. Mass.1982), offers a compelling analysis of the FDCA and its legislative history.
545 F.Supp. at 1179-80. While Bailey offers more recent Congressional findings that indicate a concern for American consumers, nothing in those findings suggests an intent to grant consumers a private claim under the Act.
The Supreme Court once used the test provided in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975), to determine whether a statute impliedly created a private right of action, but "the test in Cort v. Ash ... has been at least modified and is most appropriately described now as `whether Congress intended to create, either expressly or by implication, a private cause of action.' Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979)." Howard v. Pierce, 738 F.2d 722, 731 (6th Cir.1984) (Engel, J., dissenting). Considering the FDCA's legislative history as set out above, we are compelled to conclude that Congress did not intend, either expressly or by implication, to create a private cause of action under the FDCA.
Bailey also suggests other bases for federal jurisdiction over her claim. She argues first that her state-law claim involves a federal question because it turns upon the application of federal law. Her state-law claim rests on Tennessee Code Annotated § 53-10-101, which defines a legend drug as "[a]ny item which federal law prohibits dispensing without a prescription from a licensed doctor, dentist or veterinarian." Another section, T.C.A. § 53-10-104, prohibits and punishes any distribution of such drugs without a prescription. Bailey admits, however, that the federal law need not be interpreted, because the state statute simply incorporates the federal list of drugs. When federal law plays so minor a role, it does not suffice to establish federal jurisdiction. "[A]nother facet of the well-pleaded complaint rule is that merely naming a federal statute in a complaint will not confer federal jurisdiction if the only relief the plaintiff actually wants is based on state rather than federal law.... In such a case the invocation of federal-question jurisdiction is in bad faith and must fail." Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1195 (7th Cir.1987) (citations omitted).
Second, Bailey urges this court to accept pendent jurisdiction over her state claims. It seems, however, that Bailey has misunderstood the nature of pendent jurisdiction. She cites an Annotation entitled, "May Federal court, acquiring jurisdiction because of Federal question but deciding such question adversely to party invoking jurisdiction, decide non-Federal questions?" 12 A.L.R.2d 695. The Annotation offers no support for her case, where without her FDCA claim, she lacks any federal question jurisdiction at all. We have not decided her FDCA claim adversely to her; rather, we have held that she may not bring the claim. Pendent jurisdiction requires some federal question to which the court may append any state claims, and Bailey offers no such federal question.
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