MichBio Joins in Opposition to Proposed Changes to MCPA

Recent changes to Michigan's consumer protection laws have sparked debate, and a coalition of Michigan industry groups have joined to oppose the removal of the regulatory compliance exemption under the Michigan Consumer Protection Act (MCPA). This exemption previously shielded regulated industries from lawsuits under the MCPA, but a recent bill, SB 134, would repeal it. MichBio and coalition partners believe that this could lead to increased litigation and costly lawsuits for businesses and submitted their concerns and opposition to the Senate Finance, Insurance & Consumer Protection Committee.
This legislation is a response to the Michigan Supreme Court 1999 case decision in Smith v. Globe Life Insurance Company, which supposedly weakened the power of the Michigan Consumer Protection Act by exempting many industries, like pharmaceuticals, from liability, leaving residents ill-protected from scams and other deceptive activity.
The MCPA currently does not apply to “[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” In its Smith v. Glove Life Ins. Co. and Liss v. Lewiston-Richards, Inc. decisions, the Michigan Supreme Court (MSC) interpreted this to mean the following: if a person or company is licensed or approved to engage in a certain business or profession, and the transaction at issue falls within the scope of that license, that conduct falls outside the MPCA. While these rulings do not give a complete exemption to regulated industries from the MCPA (i.e., if the person or business is operating outside the scope of the occupation or profession, there could be an MCPA claim), they do provide protections.
Attorney General Nessel, who testified in support of the legislation in the prior session, launched an investigation into insulin manufacturer Eli Lilly and asked the Michigan Supreme Court to reconsider the two previous MSC rulings that hinder the Department’s ability to take action against drug manufacturers and other regulated/licensed entities under the MCPA. Under the 1999 and 2007 decisions, Nessel is unable to even begin an investigation into Eli Lilly because it is regulated by both the Federal Drug Administration and the Michigan Board of Pharmacy, even though neither have authority over pricing. The Court heard oral arguments in that matter earlier this year.
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