That's just it, they are not bullet-proof if the facts are in order. If the appropriate testing is done on the bright-yellow, rotten-smelling, untested capsule, to show that it is an inferior product to the crystal-clear, odor-free, 7 year tested capsule, the consumer fraud act ("CFA") could come into play, as the CFA is a broadly interpreted, remedial statute.
For instance, if the packaging does not warn about the rotten smell, that is arguably an omission of material fact under the CFA.
I currently have a CFA case against a major bank for unsuitability in connection with a HAMP mortgage modification. The bank's defense is based upon compliance with HAMP guidelines. But under the CFA, as interpreted by the NJ Supreme Court, mortgage lenders cannot use borrowers as "cash cows". In my case, the mortgage is permanently underwater, and the Loan-to-Value ratio is 117%. I beat the Motion to Dismiss, and expect to beat summary judgment.
The point is, just because the generics comply with FDA guidelines, does not mean that they are immune to the CFA for unconscionable commercial practices. By the way, the CFA provides for treble damages and attorneys fees, making it an ideal weapon against corporate malfeasance.
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