Litigation Update
August 7, 2026
This week’s newsletter discusses lawsuits related to Tylenol and autism, ultra-processed foods and chronic diseases, and preemption of local tobacco ordinances. You can find our archive of newsletters here.
Continued Efforts to Link Tylenol to Autism and ADHD
In Rutledge v. Walgreens (U.S. Court of Appeals for the Second Circuit, Docket No. 24-916) the Second Circuit vacated a lower court’s dismissal of a failure-to-warn lawsuit against drug manufacturers, pharmacies, and retailers related to the use of acetaminophen, the active ingredient in Tylenol, during pregnancy. The plaintiffs in the case claim that prenatal ingestion of acetaminophen led them or their children to develop attention-deficit/hyperactivity disorder and/or autism.
In a consolidation of 550 cases related to this claim, a District Court judge excluded causation evidence offered by the plaintiffs’ experts before ultimately granting summary judgment for the defendants. In its opinion, the Second Circuit ruled that the District Court exceeded its discretion by excluding the testimony of several of these experts. The Court wrote that these experts “offered opinions that comport with methodologies applied by other scientists in their fields and constitute acceptable interpretations of scientific evidence where scientists may, and in fact do, disagree on the ultimate answer to the causal question that they are assessing.”
The opinion was a narrow one and did not reach the issue of whether using acetaminophen during pregnancy can lead to adverse health outcomes. Instead, the Court simply examined whether the testimony excluded by the District Court should have been admitted under the rules of evidence.
The issue of Tylenol use has come to the forefront after statements by President Trump warning women to avoid taking the drug during pregnancy, prompting medical researchers to respond that the data doesn’t back up this assertion.
Ultra-Processed Food Lawsuits Gaining Traction
In Williams v. Kraft Heinz Company (U.S. District Court for the Eastern District of Arkansas, Docket No. 3:26-cv-00192) a plaintiff suffering from type 2 diabetes and fatty liver disease is suing a number of food companies, claiming that these diseases are the result of her consumption of ultra-processed foods designed, sold, and distributed by the defendants. This case, which was filed in July, comes as other similar cases have also been filed against food manufacturers. We discussed one case filed by the State of California in our Jan. 16 newsletter.
The lawsuit alleges that ultra-processed foods are a grave threat to health and have come to dominate grocery store shelves. The plaintiff also claims that the rise of ultra-processed foods has come with a corresponding increase in diabetes and other chronic illnesses. The suit further accuses food manufacturers of intentionally designing ultra-processed foods to be addictive and aggressively marketing these foods, particularly to children and minority groups.
Ultra-processed foods have at least one ingredient that wouldn’t be found in a typical kitchen, such as chemical preservatives, emulsifiers, or sweetening agents like high fructose corn syrup. Common examples of ultra-processed foods include chips, cookies, crackers, candy, soda, box macaroni and cheese, and frozen meals. Overall, ultra-processed foods have become increasingly common, as 75% of the U.S. food supply qualifies as ultra processed. And while not all ultra-processed foods create the same risk of harm, these foods have been linked to many adverse health conditions, including obesity, type 2 diabetes, many types of cancer, and higher cardiovascular risk.
We will continue to monitor and provide further updates on this case and others as needed.
Preemption & Flavored Tobacco Products
In Schwartz v. Washington County (Oregon Supreme Court, Docket No. S071235) the plaintiffs, nicotine and tobacco product retailers, argued that an Oregon law preempted a local county’s ban on flavored tobacco products. In its decision, however, the court held that the county’s ban was not preempted by the Oregon state law.
In 2021, Oregon enacted a law requiring that anyone seeking to sell tobacco products in the state obtain a license. Also in 2021, Washington County enacted an ordinance banning the sale of flavored tobacco products in that county. Following the enactment of that ordinance, the plaintiffs argued that the Oregon licensing scheme provided the authority to sell tobacco products across the entire state, therefore preempting the ban on flavored products in Washington County.
The Oregon Supreme Court noted that a local ordinance passed by a home rule county (home rule states are those where municipalities can generally pass ordinances without a specific grant of authority from the state legislature) like Washington County can only be preempted if the ordinance cannot “operate concurrently with a statute on the same subject” or if the legislature intended for the state law to have exclusive jurisdiction on the matter. The Court concluded that the ordinance and state law could operate concurrently, writing that just because a state law grants the authority to provide a license to sell a category of products doesn’t mean a local government cannot ban the sale of a subset of that category of products. The Court also found that the state law did not unambiguously express an intention to preempt ordinances such as the one enacted by Washington County and therefore does not do so.
The health risks of flavored tobacco products are well-documented, including their appeal to young people, with one study estimating that over 80% of youth and young tobacco users are using flavored tobacco products. Flavored tobacco products also conceal the harshness of regular tobacco products, making it easier to inhale cigarette smoke. In particular, menthol in cigarettes has been associated with an easier absorption of harmful chemicals into the body.
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