Taylor v. Polhill, No. 18-14934 (11th Cir. 2020)
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Plaintiff filed suit against the members of the Florida Board of Hearing Aid Specialists and the Secretary of the Florida Department of Health, each in their official capacities, alleging that three Florida statutes administered by defendants are preempted by federal law and/or violate plaintiff's due process rights. The district court dismissed plaintiff's claims.
The Eleventh Circuit affirmed the district court's dismissals for failure to state a claim pertaining to the Licensing Statute and Mail Order Ban. Because any infirmity in the Pre-Sale Testing Statute is not inextricably linked to the Licensing Statute, and because state licensing schemes are not preempted by 21 U.S.C. 360k(a)'s express preemption provision, the court held that plaintiff failed to state a claim that the Licensing Statute is preempted by federal law. Because the Mail Order Ban does not embed the Pre-Sale Testing Statute within it, and because the Mail Order Ban does not relate to the safety or effectiveness of the device, the court held that plaintiff failed to state a claim that the Mail Order Ban is preempted by federal law. The court reversed the district court's dismissal for lack of standing and held that plaintiff has standing to challenge the Pre-Sale Testing Statute. Accordingly, the court remanded for further proceedings.
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